Regulatory Matters. (a) Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement. (b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement. (c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act. (d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences. (e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole. (f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. (g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed. (h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing. (i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Regulatory Matters. (a) Subject to FSIC and CCT shall as promptly as practicable, but in no case later than five (5) Business Days after the terms and conditions date of this Agreement, each party will jointly prepare and file with the SEC the Registration Statement. Each of FSIC and CCT shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. CCT and FSIC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. FSIC shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and CCT shall use reasonable best efforts to furnish all third parties information concerning CCT and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of CCT Common Stock as may be reasonably requested by FSIC in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers FSIC and Seller shall, upon request, CCT shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersFSIC, Seller, the Companies, CCT or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, FSIC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies CCT shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 4 contracts
Samples: Merger Agreement (Corporate Capital Trust, Inc.), Merger Agreement (FS Investment CORP), Agreement and Plan of Merger (FS Investment CORP)
Regulatory Matters. (a) Subject TD Banknorth agrees to prepare a registration statement on Form S-4 or other applicable form (as may be amended, the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause “Registration Statement”) to be takenfiled by TD Banknorth with the SEC in connection with the issuance of TD Banknorth Common Stock in the Merger (including the prospectus of TD Banknorth and the joint proxy statement and other proxy solicitation materials of Hxxxxx United and TD Banknorth constituting a part thereof (as may be amended, the “Proxy Statement/Prospectus”) and all actionsrelated documents). Provided that Hxxxxx United has fulfilled its obligations under Section 7.1(d) in all material respects, TD Banknorth agrees to file, or cause to be filed, the Registration Statement and the Proxy Statement/Prospectus with the SEC as promptly as reasonably practicable. Each of Hxxxxx United and TD Banknorth agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. TD Banknorth also agrees to 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. After the Registration Statement is declared effective under the Securities Act, Hxxxxx United and TD Banknorth shall promptly mail the Proxy Statement/Prospectus to their respective shareholders. If at any time prior to the Effective Time any information relating to Hxxxxx United, TD Banknorth or their respective affiliates, officers or directors, should be discovered by Hxxxxx United or TD Banknorth which should be set forth in an amendment or supplement to either the Registration Statement or the Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the shareholders of Hxxxxx United and TD Banknorth.
(b) Each of Hxxxxx United and TD Banknorth 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, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper Governmental Entities and other third parties which are necessary or advisable to consummate the transactions contemplated by this Agreement, Agreement (including preparing the Merger) and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Notwithstanding the foregoing, including all amendments nothing contained herein shall be deemed to materials previously filed require TD Banknorth to take any action, or commit to take any action, or agree to any conditions or restrictions, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Governmental Entities or other third parties that are necessary would reasonably be expected to reflect changes result in this Agreement from the Initial Agreementimposition of a condition or restriction of the type referred to in Section 8.2(c).
(bc) Hxxxxx United and TD Banknorth shall promptly inform each other of any material communication from, and shall give the other a reasonable opportunity to review in advance any material communication intended to be given by it to, any Governmental Entity regarding any of the transactions contemplated by this Agreement (other than any confidential portion thereof that relates solely to the party receiving such communication from or providing such communication to such Governmental Entity).
(d) Each of Buyers Hxxxxx United and Seller TD Banknorth shall, upon request, furnish to the other with all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the preparation of the Registration Statement, the Proxy Statement/Prospectus or any other statement, filing, notice or application to be made by or on behalf of Buyers, Seller, the Companies, any Party or any of their respective its Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto . Hxxxxx United further agrees to make or cause to be made an cooperate with TD Banknorth and TD Banknorth’s counsel and accountants in requesting and obtaining appropriate filing of a Notification opinions, consents and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (letters from its financial advisor and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, independent registered public accounting firm in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party toRegistration Statement, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or Proxy Statement/Prospectus and any other Governmental Entity and of any communication received such statement, filing, notice or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesapplication.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 3 contracts
Samples: Merger Agreement (Toronto Dominion Bank), Merger Agreement (Hudson United Bancorp), Merger Agreement (Td Banknorth Inc.)
Regulatory Matters. (a) Subject to As of the terms and conditions date of this Agreement, each party will use its reasonable best efforts the shipment of crude petroleum and refined petroleum products on the Short Haul Pipelines are not subject to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate regulation by the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial AgreementState of Utah.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection TLO has filed a request with the transactions contemplated FERC for a determination that the Short Haul Pipelines are not subject to FERC jurisdiction. In the event the shipment of crude petroleum or refined petroleum products on the Short Haul Pipelines are determined by this Agreementthe FERC to be subject to FERC regulation, TLO shall file with the FERC and diligently pursue a request for exemption from FERC filing and reporting requirements for the Short Haul Pipelines. TRMC agrees that it will not, during the Term, challenge or assist others in challenging TLO’s requested exemption from FERC regulation. If the FERC confirms that the Short Haul Pipelines are not subject to regulation, then TLO shall not take any further actions that would require any Segment to subsequently become subject to regulation by the FERC, except as required by Applicable Law.
(c) In furtherance the event that the FERC asserts jurisdiction over the shipment of crude petroleum or refined petroleum products on the Short Haul Pipelines, the Parties agree to negotiate in good faith to adjust the terms of this Agreement and not in limitation of the foregoingTransportation Fee to conform to FERC requirements and to preserve, to the extent possible, each party hereto agrees Party’s economic benefits under this Agreement. The Parties further agree that in the event TLO is required to make or cause to be made an appropriate filing of file a Notification and Report Form pursuant to tariff with the HSR Act FERC with respect to any of the transactions contemplated by this Agreement as promptly as practicable after Short Haul Pipelines, TLO will first obtain the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant agreement of TRMC to the HSR Act rates, terms and to take or cause to be taken all other actions necessaryconditions of any such tariff, proper or advisable consistent with this Section 5.7 FERC ratemaking principles, which shall not cause TRMC’s aggregate fees for shipping the minimum throughput commitment to cause exceed the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, amount payable for such shipments under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Actterms stated herein.
(d) The Parties are entering into this Agreement in reliance upon and shall fully comply with all Applicable Law which directly or indirectly affect the crude petroleum or refined petroleum products to be throughput hereunder, or any receipt, throughput delivery, transportation, handling or storage of crude petroleum or petroleum products hereunder or the ownership, operation or condition of the Storage Facility. Each of Buyers, on the one hand, and Seller Party shall fully comply with all Applicable Law associated with such Party’s respective performance hereunder and the Companiesmaintenance and 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, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by then this Agreement, use its reasonable best efforts shall immediately be modified to (i) cooperate in all respects with each other in connection with any filing conform the action or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references obligation so adversely affected to the value requirements Applicable Law, and all other provisions of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesAgreement shall remain effective.
(e) In furtherance If during the Term, any new Applicable Law becomes effective or any existing Applicable Law are or its interpretations is materially changed, which change is not addressed by another provision of this Agreement and not has a material adverse economic impact upon a Party either Party, acting in limitation good faith, shall have the option to request renegotiation of the covenants relevant provisions of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted this Agreement with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened future performance. The Parties shall then meet and negotiate in good faith amendments to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented will conform this Agreement to the shareholders of new Applicable Law while preserving the Companies Parties’ economic, operational, commercial and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling competitive arrangements in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, accordance with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingunderstandings set forth herein.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 3 contracts
Samples: Transportation Services Agreement (Tesoro Corp /New/), Transportation Services Agreement (Tesoro Logistics Lp), Transportation Services Agreement (Tesoro Logistics Lp)
Regulatory Matters. In the event that Celgene determines that any regulatory filings for any Licensed Antibodies and/or Licensed Products are required for any activities hereunder, including INDs, XXXx and other Regulatory Approvals (aas applicable), then Celgene (or its designee) Subject shall have the sole right, in its discretion, to seek to obtain and maintain such regulatory filings (in its or its designee’s name). In addition, Celgene (or its designee) shall have the sole right to communicate and otherwise interact with Regulatory Authorities with respect to the terms Licensed Antibodies and/or Licensed Products, including with respect to any Regulatory Materials in connection therewith. Prothena (and conditions of this Agreementits Affiliates) shall have no right to, each party will use its reasonable best efforts and shall not, make any regulatory filings related to takeany Licensed Antibodies and/or Licensed Products or otherwise interact with any Regulatory Authorities with respect to the Licensed Antibodies and/or Licensed Products; provided that, or cause to be taken, all actions, to file, or cause to be filed, all documents as and to dothe extent reasonably requested by Celgene in writing, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable Prothena shall interact with Regulatory Authorities in connection with any statement, filing, notice or application made Licensed Antibodies and/or Licensed Products with respect to matters related to the Licensed Program activities conducted by or on behalf of Buyers, Seller, Prothena under the Companies, Master Collaboration Agreement or any of their respective Subsidiaries with respect to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of Prothena Ongoing Program Activities. Notwithstanding the foregoing, each party hereto agrees until such time as a given Existing Regulatory Material is assigned and transferred to make Celgene in accordance with Section 2.2.1 or cause to 2.2.2 (as applicable), Prothena shall be made an appropriate filing of a Notification responsible for all communications and Report Form pursuant to the HSR Act interactions with Regulatory Authorities with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other such Existing Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private partyMaterial; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity orthat, in connection with any proceeding such activities by a private partyProthena, with any other personProthena shall, and to the extent permitted reasonably requested by the FTCCelgene, the DOJ consult and coordinate with Celgene with respect thereto (including allowing Celgene to attend or such other applicable Governmental Entity participate in any meetings or other person, give interactions with Regulatory Authorities to the other party the opportunity to attend and participate in extent such meetings and conferences.
(e) In furtherance and attendance is not in limitation of the covenants of the parties contained in Sections 5.7(cprohibited or limited by such Regulatory Authority) and 5.7(dProthena shall accommodate and comply with any reasonable requests made by Celgene in connection therewith (including that Prothena shall submit to Celgene a copy of any proposed filings and correspondence with any Regulatory Authority for Celgene’s review and approval prior to submission thereof). At the request of Celgene, if any objections are asserted Prothena shall reasonably assist Celgene in communications and filings with Regulatory Authorities with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholeLicensed Antibodies and/or Licensed Products.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 3 contracts
Samples: Global License Agreement (Prothena Corp Public LTD Co), Master Collaboration Agreement (Prothena Corp PLC), Master Collaboration Agreement (Prothena Corp PLC)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable (but in any case, within forty-five (45) calendar days of the terms and conditions date of this Agreement), each party will use its reasonable best efforts to take, or cause to be taken, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of HBI and FNB constituting a part thereof and all actions, to file, or cause to be filed, all documents related documents. HBI shall prepare and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all FNB such information concerning itself (or in the case of Seller, the Companies), relating to it and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the information required for said documents. HBI and its legal, financial and accounting advisors shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, conditioned or delayed, such Registration Statement prior to its filing. HBI agrees to cooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, consents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. Each of HBI and FNB agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. FNB also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions this Agreement contemplates. After the SEC has declared the Registration Statement effective under the Securities Act, HBI shall promptly mail the Proxy Statement to its shareholders, and the expenses in connection therewith shall be borne in accordance with Section 9.3(a).
(b) Each of HBI and FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 HBI and FNB agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall at the dates of mailing to HBI’s shareholders Meeting 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, in the light of the circumstances under which such statements were made, not misleading. Each of HBI and FNB further agrees that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement 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 an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by Law, disseminated to the shareholders of HBI.
(c) FNB agrees to advise HBI, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective reasonable best efforts to promptly (but in any case, within forty-five (45) calendar 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, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, 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 Regulatory Agencies and Governmental Entities. HBI and FNB shall have the right to review in connection with any statementadvance, filingand, notice 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 HBI or application made by or on behalf of BuyersFNB, Selleras the case may be, the Companies, or and any of their respective Subsidiaries to Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) . 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification FNB and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and HBI shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its their respective reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB or HBI to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Regulatory Agencies or Governmental Entities that would reasonably be likely to have a Material Adverse Effect on the Surviving Company after giving effect to the Merger, after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, HBI agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that prohibits, prevents may be necessary or restricts advisable to effect any mergers and/or consolidations of Subsidiaries of HBI and FNB following consummation of the Merger.
(e) Each of FNB and HBI shall, upon request, furnish to the other 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 Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of FNB, HBI or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(gf) Each of Buyers FNB and Seller HBI shall promptly provide each other with any written communications received from any Regulatory Agency or Governmental Entity with respect to the transactions contemplated by this Agreement and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayedcontemplates.
(hg) In furtherance HBI and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld, approvalsconditioned or delayed; provided, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”)however, the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by Law or the rules or regulations of the SEC, the Federal Reserve Board, the FDIC, the OCC, the MDOFR or the NYSE. In addition, the Chief Executive Officers of HBI and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. HBI and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 3 contracts
Samples: Merger Agreement (Howard Bancorp Inc), Merger Agreement (FNB Corp/Pa/), Merger Agreement (Howard Bancorp Inc)
Regulatory Matters. (a) Subject to TCPC and BCIC shall as promptly as practicable, jointly prepare and file with the terms and conditions of this Agreement, each party will SEC the Registration Statement. TCPC shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Merger. BCIC and TCPC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness and shall also use their respective reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consents, waivers, approvals, authorizations, permits or orders from if any. BCIC shall use reasonable best efforts to furnish all third parties information concerning BCIC and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of BCIC Common Stock as may be reasonably requested by TCPC in this Agreement from the Initial Agreementconnection with any such actions.
(b) Each of Buyers TCPC and Seller shall, upon request, BCIC shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersTCPC, Seller, the Companies, BCIC or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Merger and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, TCPC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies BCIC shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (BlackRock Capital Investment Corp), Agreement and Plan of Merger (BlackRock TCP Capital Corp.), Merger Agreement (BlackRock Capital Investment Corp)
Regulatory Matters. (a) Subject to OTF and OTF II shall as promptly as practicable jointly prepare and file with the terms and conditions of this Agreement, each party will SEC the Registration Statement. OTF shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. OTF II and OTF shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. OTF shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and OTF II shall use reasonable best efforts to furnish all third parties information concerning OTF II and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of OTF II Common Stock as may be reasonably requested by OTF in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers OTF and Seller shall, upon request, OTF II shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersOTF, Seller, the Companies, OTF II or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, OTF and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies OTF II shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Blue Owl Technology Finance Corp. II), Merger Agreement (Blue Owl Technology Finance Corp.)
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, Banner shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement, which will be prepared jointly by Banner and Home, will be included. Each of Banner and Home shall use its commercially reasonable best efforts 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 Banner shall use its commercially reasonable best efforts to have the 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 shall thereafter mail or deliver the Proxy Statement to its shareholders. Banner 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, and Home shall furnish all information concerning Home and the holders of Home Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to Home or Banner, or any of their respective affiliates, directors or officers, should be discovered by Home or Banner that should be set forth in an amendment or supplement to either the S-4 or the 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 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), Banner shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide Home with copies of any such filings. Banner shall advise Home, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of Banner Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the 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 Proxy Statement or the S-4 shall be filed without the approval of each of Home and Banner, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will Banner and Home shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other 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 preparing (i) the satisfaction of the conditions precedent to the obligations of Home (in the case of Banner) or Banner (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 filing 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 documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes in consummate the transactions contemplated by this Agreement from (including the Initial 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. In furtherance (but not in limitation) of the foregoing, Banner shall, and shall cause Banner Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the Federal Reserve Board, the DFI, the Idaho Department, the Oregon Division, and the FDIC within forty-five (45) days after the date hereof. Home and Banner 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 Banner, 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 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 obtaining of all permits, consents, approvals and authorizations 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 keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bd) Each of Buyers Banner and Seller Home shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of BuyersBanner, Seller, the Companies, Home or any of their respective Subsidiaries to any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, Banner and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies 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 transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.2(e)).
Appears in 2 contracts
Samples: Merger Agreement (Home Federal Bancorp, Inc.), Merger Agreement (Banner Corp)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this AgreementAgreement and availability of Xxxxxxx financial statements in form required for use on Form S-4, each party will Xxxxxxx and MECH (as to information to be included therein pertaining to MECH) shall promptly cause to be prepared and filed with the SEC a registration statement of Xxxxxxx on Form S-4, including the Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the Xxxxxxx Common Stock to be issued in the Merger, and for soliciting the approval of this Agreement and the Merger by the shareholders of MECH. Xxxxxxx and MECH shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to MECH is discovered by MECH which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, MECH shall promptly inform Xxxxxxx, and shall furnish Xxxxxxx with all necessary information relating to such event whereupon Xxxxxxx shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of Xxxxxxx and MECH (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. If at any time after the Registration Statement is filed with the SEC, and prior to filethe Closing Date, any event relating to Xxxxxxx is discovered by Xxxxxxx which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, Xxxxxxx shall promptly inform MECH, and Xxxxxxx shall promptly cause an appropriate amendment to the Registration Statement to be filedfiled with the SEC. Upon the effectiveness of such amendment, each of Xxxxxxx and MECH (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all documents necessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. Xxxxxxx shall also use 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 Bank Merger Agreement and MECH shall furnish all information concerning MECH and the holders of MECH 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 best efforts to promptly prepare and file all necessary documentation to effect all applications, notices, petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Bank Merger). MECH and Xxxxxxx 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 MECH and MS Bank or Xxxxxxx or Xxxxxxx Bank, as the case may be, 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; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller MECH shall, upon request, furnish to the other Xxxxxxx with all information concerning itself (or in the case of SellerMECH, the Companies), its Subsidiaries, MS Bank and their directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries Xxxxxxx to any Governmental Entity in connection with the Merger, the Bank Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Xxxxxxx and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies MECH shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Webster Financial Corp), Merger Agreement (Mech Financial Inc)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of BCSB constituting a part thereof and all related documents. BCSB shall prepare and furnish to FNB such information relating to it and its Subsidiaries, directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents. BCSB and conditions of this Agreementits legal, each party will use financial and accounting advisors, shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, such Registration Statement prior to its reasonable best efforts filing. BCSB agrees to takecooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, or cause to be takenconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as BCSB has cooperated as described above, all actions, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of BCSB and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, BCSB shall promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of Buyers BCSB and Seller FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 BCSB and FNB agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall 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 BCSB and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement 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 an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of BCSB.
(c) FNB agrees to advise BCSB, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective 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, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, including the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. BCSB and FNB 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 BCSB or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB, including the Surviving Company, after giving effect to the Merger, after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, BCSB agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of BCSB and FNB following consummation of the Merger.
(e) Each of FNB and BCSB shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, BCSB or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(df) Each of Buyers, on the one hand, FNB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with BCSB shall promptly provide each other in connection with any filing written communications received from any Regulatory Agency or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c)) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance BCSB and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by Law or the rules or regulations of the SEC, the Federal Reserve Board, the FDIC, the OCC, the NYSE or NASDAQ. In addition, the Chief Executive Officers of BCSB and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. BCSB and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (BCSB Bancorp Inc.), Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to Parent and National Penn shall promptly prepare and file with the terms and conditions SEC, no later than 30 business days after of the date of this Agreement, each party the Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and National Penn shall use their reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing, and National Penn shall thereafter mail or deliver the Proxy Statement to its shareholders. Parent shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, or cause and National Penn shall furnish all information concerning National Penn and the holders of National Penn 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 be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper 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, including preparing Parent and filing National Penn shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. Parent and National Penn 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 practicable all documentation reasonably practicable. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to effect all necessary filingsobtain the Requisite Regulatory Approvals). Parent and National Penn shall have the right to review in advance, consentsand, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish 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 concerning itself (relating to National Penn or in Parent, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality. 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 herein. 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 party hereto agrees to make or cause to be made an appropriate filing of a Notification Parent and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties National Penn shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Parent, National Penn and their respective Subsidiaries. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall require Parent or National Penn or their respective Subsidiaries to take, or agree to take, any actions specified in this Section 6.1 that, individually or in the aggregate, would reasonably be expected to have a material and adverse effect on Parent and that prohibitsits Subsidiaries, prevents taken as a whole, or restricts consummation on National Penn and its Subsidiaries, taken as a whole (in each case, measured on a scale relative to National Penn and its Subsidiaries, taken as a whole) (a “Materially Burdensome Regulatory Condition”).
(d) Parent and National Penn 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 Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Parent, National Penn or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Parent and National Penn 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 S-4 will, at the time the S-4 and each amendment or supplement thereto, if any, is filed or becomes effective under the Securities Act, 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 and (ii) the Proxy Statement and any amendment or supplement thereto will, at the date it is filed with the SEC, at the date of mailing to shareholders and at the time of National Penn’s meeting of its shareholders to consider and vote upon approval of this Agreement, 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, in the light of the circumstances under which such statement was made, not misleading. Each of Parent and National Penn further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the S-4 or the Proxy Statement 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 appropriate steps to correct the S-4 or the Proxy Statement.
(ge) Each of Buyers Parent and Seller and the Companies National Penn shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Bb&t Corp), Merger Agreement (National Penn Bancshares Inc)
Regulatory Matters. (a) Subject CAVB and PNFP shall promptly prepare and file with the SEC the Joint Proxy Statement and PNFP shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of CAVB and PNFP shall use their reasonable best efforts in consultation with their respective legal counsel to have the terms Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of this Agreement, each party will CAVB and PNFP shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. PNFP shall also use its reasonable best efforts to takeobtain all necessary state securities law or "Blue Sky" permits and approvals required to carry out the transactions contemplated by this Agreement, and CAVB shall furnish all information concerning CAVB and the holders of CAVB Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to or after the Effective Time any information relating to either of the parties, or cause their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to be takenany of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to be filedthe shareholders of PNFP and CAVB.
(b) 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 documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. CAVB and PNFP 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 PNFP or CAVB, as the case may be, 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 transactions contemplated by this Agreement. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers CAVB and Seller PNFP shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)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 Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersCAVB, Seller, the Companies, PNFP or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, CAVB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies PNFP shall promptly advise the other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined below) will not be obtained or that the receipt of any such approval may will be materially delayed.
(he) In furtherance PNFP and not in limitation CAVB shall promptly furnish each other with copies of written communications received by PNFP and CAVB, as the case may be, or any of their respective Subsidiaries from, or delivered by any of the covenants foregoing to, any Governmental Entity in respect of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Pinnacle Financial Partners Inc), Merger Agreement (Cavalry Bancorp Inc)
Regulatory Matters. (a) Subject NCF and STI shall promptly prepare and file with the SEC the Joint Proxy Statement and STI shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of NCF and STI shall use their reasonable best efforts to have the terms Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of this Agreement, each party will NCF and STI shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. STI shall also use its reasonable best efforts to takeobtain all necessary state securities law or "Blue Sky" permits and approvals required to carry out the transactions contemplated by this Agreement, and NCF shall furnish all information concerning NCF and the holders of NCF Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any information relating to either of the parties, or cause their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to be takenany of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to be filedthe shareholders of STI and NCF.
(b) 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 documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. NCF and STI 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 STI or NCF, as the case may be, 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 transactions contemplated by this Agreement. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers NCF and Seller STI shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)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 Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersNCF, Seller, the Companies, STI or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, NCF and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies STI shall promptly advise the other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined below) will not be obtained or that the receipt of any such approval may will be materially delayed.
(he) In furtherance STI and not in limitation NCF shall promptly furnish each other with copies of written communications received by STI or NCF, as the case may be, or any of their respective Subsidiaries from, or delivered by any of the covenants foregoing to, any Governmental Entity in respect of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Suntrust Banks Inc), Merger Agreement (National Commerce Financial Corp)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of CBI constituting a part thereof and all related documents. CBI shall prepare and furnish to FNB such information relating to it and its directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementCBI, each party will use and its reasonable best efforts legal, financial and accounting advisors, shall have the right to takereview in advance and approve, or cause which approval shall not be unreasonably withheld such Registration Statement prior to be takenits filing. CBI agrees to cooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, all actionsconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as CBI has cooperated as described above, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of CBI and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, CBI shall promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of Buyers CBI and Seller FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of CBI and FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of CBI and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements in this Agreement not false or misleading, to promptly inform the other parties thereof and an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of CBI and/or FNB.
(c) FNB agrees to advise CBI, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective 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, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, including the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. CBI and FNB 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 CBI or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any Governmental Entity in connection with the transactions this Agreement contemplates. 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB and its Subsidiaries, including the Surviving Company after giving effect to the Merger, taken as a whole after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, CBI agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of CBI and FNB following consummation of the Merger.
(e) Each of FNB and CBI shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, CBI or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholecontemplates.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers FNB and Seller and the Companies CBI shall promptly advise the other upon receiving any communication from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval Approval, as defined in Section 7.1(c), will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance CBI and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the FDIC, the OCC, the NYSE or FINRA. In addition, the Chief Executive Officers of CBI and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. CBI and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Comm Bancorp Inc), Agreement and Plan of Merger (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to MMLC and GSBD shall as promptly as practicable jointly prepare and file with the terms SEC the Registration Statement. Each of MMLC and conditions of this Agreement, each party will GSBD shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. GSBD and MMLC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. GSBD shall also use its reasonable best efforts to obtain all necessary filingsstate securities law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and MMLC shall use reasonable best efforts to furnish all third parties information concerning MMLC and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of MMLC Common Stock as may be reasonably requested by GSBD in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers MMLC and Seller shall, upon request, GSBD shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersMMLC, Seller, the Companies, GSBD or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, MMLC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies GSBD shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Goldman Sachs BDC, Inc.), Merger Agreement (Goldman Sachs BDC, Inc.)
Regulatory Matters. (a) Subject to Parent and Company shall promptly prepare and file with the terms and conditions SEC, no later than sixty (60) days after of the date of this Agreement, each party the Joint 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. Each of Parent and Company shall use their reasonable best efforts to 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 Company shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders/stockholders. Parent shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement as promptly as practicable, or cause and Company shall furnish all information concerning 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 efforts to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger and the Bank Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Without limiting the generality of the foregoing, including all amendments to materials previously filed that are necessary to reflect changes as soon as practicable and in any event within forty-five (45) days after the date of this Agreement from the Initial Agreement.
(b) Each of Buyers , Parent and Seller Company shall, upon requestand shall cause their respective Subsidiaries to, furnish each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. Parent and Company shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval and any approvals required for the Bank Merger as promptly as reasonably practicable. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to obtain the Requisite Regulatory Approvals) and shall respond as promptly as practicable to the requests of Governmental Entities for documents and information. Parent and 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 concerning itself (relating to Company or in Parent, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing and with sufficient opportunity to comment, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality (except any competitively sensitive business or other proprietary information (but not any confidential supervisory information) of Company that is necessary for Parent to prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals; provided, that Parent shall request confidential treatment of any such information, permit Company to control the defense of any challenge to such confidential treatment request and will not release any such information publicly pursuant to Freedom of Information Act requests or similar rules without Company’s consent). 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 herein. 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 any such meetings and conferences.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Parent and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Company shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Parent, Company and their respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall require Parent or any of its Subsidiaries to take, or agree to take, any actions specified in this Section 6.1 or otherwise or to agree to any conditions in respect of any approvals required hereunder that would reasonably be likely to have a material adverse effect with respect to Parent and that prohibitsits Subsidiaries, prevents taken as a whole, after giving effect to the Merger (a “Materially Burdensome Regulatory Condition”).
(d) Parent and Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and shareholders/stockholders and such other matters as may be reasonably necessary or restricts consummation 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 Parent, Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Parent and Company agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in (i) the S-4 will, at the time the S-4 and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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, (ii) the Joint Proxy Statement and any amendment or supplement thereto will, at the date of mailing to the respective stockholders/shareholders of Company or Parent and at the time of the Parent Meeting and the Company Meeting, 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, in the light of the circumstances under which such statement was made, not misleading, and (iii) any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals will, at the time each is filed, 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 Parent and Company further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the S-4 or the Joint Proxy Statement 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 appropriate steps to correct the S-4 or the Joint Proxy Statement.
(ge) Each of Buyers Parent and Seller and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(hf) In furtherance Without limiting the generality of this Section 6.1, Company shall, and not shall cause its Subsidiaries to, reasonably cooperate with Parent and its Subsidiaries (including the furnishing of information and by making employees reasonably available) as is reasonably requested by Parent in limitation order to comply with the requirements of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect Xxxx-Xxxxx Xxxx Street Reform and Consumer Financial Protection Act stress testing program applicable to the consents, waivers, approvals, authorizations Parent and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingits Subsidiaries.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (First Horizon National Corp), Merger Agreement (Capital Bank Financial Corp.)
Regulatory Matters. (a) Subject to Target and Parent shall promptly prepare and file with the terms and conditions SEC, no later than thirty-five (35) business days after the date of this Agreement, each party the Joint Proxy Statement/Prospectus and Parent shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement/Prospectus will be included as a prospectus. Each of Target and Parent shall use their reasonable best efforts in consultation with their respective legal counsel to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and Parent and Target shall thereafter promptly mail or deliver the Joint Proxy Statement/Prospectus to their respective shareholders. Parent shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and Target shall furnish all information concerning Target and the holders of Target Capital Stock as may be reasonably requested in connection with any such action. If at any time any information relating to any of the parties, or their respective affiliates, officers or directors, should be discovered by a party, which information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents 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 which discovers such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and mailed, delivered or otherwise made available to the shareholders of Parent and Target.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file and cause their applicable Subsidiaries 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 or Regulatory Agencies which are reasonably necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Mergers 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, Regulatory Agencies and third parties. 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 Target shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required to be takenfiled with any Governmental Entity or Regulatory Agency, including the FRB, FDIC, TDFI or NCCOB, in order to obtain the Requisite Regulatory Approvals. The parties hereto agree that they will consult with the other parties hereto with respect to the obtaining of all actionspermits, to fileconsents, or cause to be filedapprovals and authorizations of all third parties, all documents Governmental Entities and to do, or cause to be done, all things necessary, proper Regulatory Agencies necessary or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation each party will keep the others apprised of the status of matters relating to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties completion of the transactions contemplated herein. Parent and Governmental Entities, including all amendments Target agree to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers furnish each other and Seller shall, upon request, furnish to the other each other’s counsel with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, trustees, officers and shareholders and such other matters as reasonably may be reasonably necessary or advisable in connection with the Joint Proxy Statement/Prospectus, the Form S-4, the Requisite Regulatory Approvals and any statementapplication, filing, notice petition or other statement or application made by or on behalf of BuyersParent, SellerParent Bank, the Companies, Target or Target Bank or any of their respective Subsidiaries affiliates to any Governmental Entity or Regulatory Agency in connection with the transactions contemplated by this Agreement. Parent and Target 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 Parent or Target, 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 or Regulatory Agency 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. Each party shall consult with the other in advance of any meeting or conference with any third party or any Governmental Entity or Regulatory Agency in connection with the transactions contemplated by this Agreement and, to the extent permitted by such Governmental Entity or Regulatory Agency, give the other party and its counsel the opportunity to attend and participate in such meetings and conferences, except to the extent such meetings and conferences relate to confidential supervisory information. Each party will provide the other with copies of any applications, notices, petitions or filings, and all correspondence relating thereto, prior to filing, other than any portions of material filed in connection therewith that contain confidential supervisory information or other information filed under a claim of confidentiality and, in each case, subject to applicable laws relating to the exchange of information. Each party acknowledges and agrees that nothing in this Agreement, including this Section 6.1 and Section 6.2, shall require any party to provide confidential supervisory information to any other party.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Parent and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Target shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Parent, Target and their respective Subsidiaries. Notwithstanding anything to the contrary in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, nothing contained in this Agreement shall require Parent or Target or their respective Subsidiaries to take, or agree to take, any actions specified in this Section 6.1 that, individually or in the aggregate, 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 Mergers and the Bank Merger (a “Burdensome Condition”).
(gd) Each of Buyers Parent and Seller Target agrees, as to itself and its Subsidiaries, (i) that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Form S-4 will, at the time the Form S-4 and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 and (ii) that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus and any amendment or supplement thereto will, at the date of mailing to shareholders and at the time of the Parent Shareholders’ Meeting and the Companies Target Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make any statement therein, in light of the circumstances under which such statement was made, not misleading. Each of Parent and Target further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the Form S-4 or the Joint Proxy Statement/Prospectus 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 appropriate steps to correct the Form S-4 or the Joint Proxy Statement/Prospectus.
(e) To the extent permitted by applicable law, Target and Parent shall promptly advise the each other upon their (or their Subsidiaries’) receiving any communication from any Governmental Entity the or Regulatory Agency whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or obtained, that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) delayed or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain Burdensome Condition might be imposed on any such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive ClosingRequisite Regulatory Approval.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Pinnacle Financial Partners Inc), Merger Agreement (BNC Bancorp)
Regulatory Matters. (a) Subject The Acquiror shall prepare and file with the SEC a registration statement on Form S-4 covering the Acquiror Common Stock to be issued pursuant to the terms Plan of Merger (the "Registration Statement"), and conditions the Company shall give to Acquiror all information concerning the Company which is required for inclusion in the Registration Statement. The Registration Statement shall include a Proxy Statement/Prospectus for use in connection with the Shareholders Meeting, all in accordance with the rules and regulations of the SEC. Each of Acquiror and the Company shall use its best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, and the Company shall thereafter mail the Proxy Statement/Prospectus to its shareholders. Acquiror shall use its 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 requested in connection with any such action.
(b) The Acquiror shall promptly prepare and submit all applications, notices and statements with the appropriate regulatory agencies and governmental entities to obtain the Requisite Regulatory Approvals (as defined in Section 7.1) for approval of the transactions contemplated by this Agreement.
(c) The parties hereto shall cooperate with each party will other and use its their reasonable best efforts to takepromptly prepare and file all necessary documentation, or cause to be takeneffect all applications, notices, petitions and filings, and obtain as promptly as practicable all actionsRequisite Regulatory Approvals, to filepermits, or cause to be filedconsents, approvals and authorizations of all documents third parties, regulatory agencies and to do, or cause to be done, all things necessary, proper governmental entities which are necessary or advisable to consummate the transactions contemplated by this Agreement. The Company and Acquiror shall have the right to review in advance, including preparing 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 Acquiror, as the case may be, and any of their respective subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, regulatory agency or governmental entity in connection with the transactions contemplated by this Agreement; provided, however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any regulatory agency or governmental entity on a 37 44 confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreementpracticable.
(bd) Each of Buyers Acquiror and Seller the Company shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its Subsidiariestheir subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, SellerAcquiror, the Companies, Company or any of their respective Subsidiaries subsidiaries to any Governmental Entity regulatory agency or governmental entity in connection with the Merger and the other transactions contemplated by this Agreement.
(ce) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller The Acquiror and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the regulatory agency or governmental entity whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite the Requisite Regulatory Approval (as defined in Section 7.1) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (First Federal Capital Corp), Merger Agreement (First Federal Capital Corp)
Regulatory Matters. (a) Subject NPB agrees to prepare the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause Registration Statement to be takenfiled by NPB with the SEC in connection with the issuance of NPB Common Stock in the Merger (including the Prospectus/Proxy Statement and all related documents). Provided that KNBT has fulfilled its obligations under Section 5.04(d) in all material respects, all actions, NPB agrees to file, or cause to be filed, the Registration Statement and the Prospectus/Proxy Statement with the SEC as promptly as reasonably practicable. Each of NPB and KNBT agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. After the Registration Statement is declared effective under the Securities Act, KNBT and NPB shall promptly mail the Prospectus/Proxy Statement to their respective shareholders. If at any time prior to the Effective Time any information relating to KNBT, NPB or their respective affiliates, officers or directors, should be discovered by KNBT or NPB which should be set forth in an amendment or supplement to either the Registration Statement or the Prospectus/Proxy Statement so that such documents would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the shareholders of KNBT and NPB.
(b) Each of KNBT and NPB shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all documents necessary documentation, to effect all applications, notices, petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper Regulatory Authorities and other third parties which are necessary or advisable to consummate the Contemplated Transactions and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Authorities and third parties. Notwithstanding the foregoing, nothing contained herein shall be deemed to require NPB or KNBT to take any action, or commit to take any action, or agree to any conditions or restrictions, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Regulatory Authorities or other third parties that would reasonably be expected to result in the imposition of a condition or restriction of the type referred to in Sections 6.01(d) and 6.02(d).
(c) NPB and KNBT shall promptly inform each other of any material communication from, and shall give the other a reasonable opportunity to review in advance any Application or other material communication intended to be given by it to, any Regulatory Authority regarding any of the transactions contemplated by this Agreement, including preparing and filing as each shall consult the other with respect to the substance and status of such filings. KNBT and NPB shall each promptly as practicable all documentation to effect all necessary filingsfurnish the other with copies of written communications to, consentsor received by them from, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes any Regulatory Authority in this Agreement from respect of the Initial AgreementContemplated Transactions.
(bd) Each of Buyers KNBT and Seller shall, upon request, NPB shall cooperate with each other in the foregoing matters and shall furnish to the other with all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, Application or filing, notice or application including any report filed with the SEC, made by or on behalf of Buyers, Seller, the Companies, such party to or with any of their respective Subsidiaries to any Governmental Entity Regulatory Authority in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoingContemplated Transactions, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) each such case, such information shall be accurate and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary complete in all material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicablerespects. In furtherance connection therewith, KNBT and not in limitation of the foregoing, the parties shall request and NPB shall use their reasonable best good faith efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyersprovide each other certificates, on the one hand, certifications from accountants and Seller and the Companies, on other documents reasonably requested by the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party toRegistration Statement, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) Prospectus/Proxy Statement or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesApplication.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (National Penn Bancshares Inc), Merger Agreement (KNBT Bancorp Inc)
Regulatory Matters. (a) Subject to Promptly after the terms and conditions date of this Agreement, each party BB&T and SunTrust shall prepare and file with the SEC the Joint Proxy Statement, and BB&T shall prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included is a prospectus. BB&T and SunTrust, as applicable, shall use reasonable best efforts to make such filings within thirty (30) days of the date of this Agreement. Each of BB&T and SunTrust shall use its reasonable best efforts to takehave the S-4 declared effective under the Securities Act as promptly as practicable after such filings, and BB&T and SunTrust shall thereafter mail or cause deliver the Joint Proxy Statement to their respective shareholders. BB&T 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 SunTrust shall furnish all information concerning SunTrust and the holders of SunTrust Common Stock as may be taken, 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 prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings (and in the case of the applications, notices, petitions and filings in respect of the Requisite Regulatory Approvals, use their reasonable best efforts to be filedmake such filings within thirty (30) days of the date of this Agreement), to obtain as promptly as practicable all documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger and the Bank Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and such Governmental Entities. BB&T and SunTrust shall have the right to review in advance, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shalland, upon request, furnish 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 concerning itself (relating to SunTrust or in BB&T, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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.
(c) . In furtherance and not in limitation of exercising the foregoingforegoing right, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) hereto shall act reasonably and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.promptly
Appears in 2 contracts
Samples: Merger Agreement (Suntrust Banks Inc), Merger Agreement (Bb&t Corp)
Regulatory Matters. (a) Subject Newcourt and CIT shall promptly prepare the Proxy Circular and, if required, CIT shall promptly prepare and file with the SEC a registration statement on the appropriate form with respect to any of the terms securities to be issued in the Arrangement (or upon exchange of Exchangeable Shares) (the "Registration Statement") and conditions shall take all actions necessary to maintain such Registration Statement current and effective for as long as shall be required to enable the holders of this Agreement, each party will Exchangeable Shares to sell the shares of CIT Common Stock received upon exchange thereof. Each of the Newcourt and CIT shall use its reasonable best efforts to takehave the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, (or, if the filing of the Registration Statement is not required, to have the Proxy Circular reviewed by the SEC prior to mailing) and each of Newcourt and CIT shall thereafter mail the Proxy Circular to its respective shareholders. CIT 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.
(b) Newcourt shall file the Proxy Circular in all Canadian jurisdictions where the Proxy Circular is required to be filed and with the SEC in accordance with the applicable rules and regulations thereof. The parties shall use all reasonable efforts to obtain all orders required from the applicable Canadian securities authorities to permit the issuance and first resale of (i) the Exchangeable Shares and the shares of CIT Common Stock to be issued pursuant to the Arrangement, (ii) the shares of CIT Common Stock to be issued upon exchange of the Exchangeable Shares from time to time and (iii) the shares of CIT Common Stock to be issued from time to time upon the exercise of the Replacement Options, in each case without qualification with or approval of or the filing of any document, including any prospectus or similar document, or cause the taking of any proceeding with, or the obtaining of any further order, ruling, or consent from, any Governmental Entity or regulatory authority under any Canadian federal, provincial or territorial securities laws or pursuant to be takenthe rules and regulations of any regulatory authority administering such laws, or the fulfilment of any other legal requirement in any such jurisdiction (other than, with respect to such first resales, any restrictions on transfer by reason of, among other things, a holder being a "control person" of Newcourt or CIT for purposes of Canadian federal, provincial or territorial securities laws).
(c) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Arrangement) and for the parties and their Subsidiaries to conduct their respective businesses after the Closing Date in substantially the same manner as conducted currently, including preparing and filing as promptly as practicable all documentation or which are required in order to maintain in effect all necessary filings, consents, waivers, approvals, any governmental authorizations, permits licenses or orders from all third approvals pursuant to which either of the parties or their Subsidiaries carries on its business as currently conducted. Newcourt and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, CIT each will furnish to the other for 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 concerning itself (relating to Newcourt or in CIT, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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.
(c) . In furtherance and not in limitation exercising the foregoing right, each of the foregoing, parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act other with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to makeobtaining of all permits, or cause to be madeconsents, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in of all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from and Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper Entities necessary or advisable to consummate the transactions contemplated by this AgreementAgreement and, such in each case subject to applicable law relating to the exchange of information, each party shall obtain acceptable alternative arrangements, with will keep the other party’s participation, cooperation and approval; provided, that apprised of the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity status of matters relating to antitrust matters, insurance, or regulating competition.completion of the transactions contemplated herein. Promptly upon the reasonable request of CIT,
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cit Group Inc), Agreement and Plan of Reorganization (Cit Group Inc)
Regulatory Matters. (a) Subject to As soon as practicable, and in any event within twenty (20) Business Days after the terms date hereof, (i) each of Purchaser and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with Stockholder shall file any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant Forms and related material required to be filed by it with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act Act, and Purchaser, Stockholder and the Company shall make any similar required competition law filings under any other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement and shall promptly make any further filings pursuant thereto that may be necessary, proper or advisable, and (ii) the Company shall make an application with the Department of State relating to the registration of the Company or any of its Subsidiaries as promptly an exporter under ITAR (which application shall request that any related ITAR licenses relating to the Company or any of its Subsidiaries as practicable after an exporter under ITAR be transferred to the date hereof Company or any of its Subsidiaries upon the Stock Purchase Closing Date).
(b) As soon as practicable, and in any event within 5 business daystwenty (20) Business Days after the date hereof, each of Stockholder, Purchaser and the Company shall make, and shall cause its Subsidiaries to make, all necessary filings with or cause applications to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and Governmental Authority that has issued a Company Permit with respect to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, including any necessary applications to the FCC for its consent to the transactions contemplated hereby with respect to a Company Permit issued by the FCC (the "FCC Consent Application").
(c) Purchaser, Stockholder and the Company shall: (i) use its their reasonable best efforts to obtain prompt termination of any waiting period under the HSR Act (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated extension of the initial thirty (30) day waiting period with respect to the transactions contemplated by a private partythis Agreement); (ii) subject furnish to applicable legal limitations the other parties such information and assistance as such parties reasonably may request in connection with the instructions preparation of any submissions to, or agency proceedings by, any Governmental Entity, Authority under any applicable Antitrust Law; (iii) keep the other party reasonably informed parties promptly apprised of any communication received by such party communications with, and inquiries or requests for information from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given Authorities in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated herebytherewith; and (iiiiv) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party parties to review in advance any material communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each the other parties in advance of any meeting or conference with, the FTC, the DOJ or any other such Governmental Entity Authority or, in connection with any proceeding by a private party, with any other personPerson, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity Authority or other personPerson, give the other party parties the opportunity to attend and participate in such meetings and conferences; and (v) use their reasonable best efforts to cause the condition set forth in Sections 2.03(c)(ii) to be satisfied.
(d) Each of the Company, Stockholder and Purchaser shall, and shall cause its Subsidiaries to, (i) use reasonable best efforts to diligently prosecute all applications with the FCC, including the FCC Consent Application, and all similar foreign Governmental Authorities for consent to the transactions contemplated herein and to provide all appropriate filings and notifications to foreign Governmental Authorities, (ii) furnish to the other parties such information and assistance as such parties reasonably may request in connection with the preparation or prosecution of any such applications, (iii) keep the other parties promptly apprised of any communications with, and inquiries or requests for information from, such Governmental Authorities with respect to the transactions contemplated hereby, and (iv) use its reasonable best efforts to cause the condition set forth in Section 2.03(c)(iii) of this Agreement to be satisfied.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c6.08(a), (b), (c) and 5.7(d(d), each party agrees to use its reasonable best efforts to address such objections, if any, as may be asserted with respect to the transactions contemplated hereby under the Communications Act of 1934, as amended, the Telecommunications Act of 1996, any rule, regulation or policy of the FCC, and/or any statute, rule, regulation or policy of any other Governmental Authority with respect to the operation of channels of radio communication and/or the provision of communications services (including the provision of direct-to-home video programming) (collectively, "Communications Regulation") or any applicable Antitrust Law. In connection with the foregoing, each party agrees to cooperate and use its reasonable best efforts to assist in any defense by any other party hereto of the transactions contemplated by this Agreement before any Governmental Authority reviewing the transactions contemplated by this Agreement, including by promptly providing such information as may be reasonably requested by such Governmental Authority or such assistance as may be reasonably requested by the other party hereto in such defense.
(f) If any objections are asserted with respect to the transactions contemplated hereby under any Law applicable Antitrust Law, Communications Regulation or any law relating to ITAR, or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby as violative of any applicable Antitrust Law or which would otherwise preventCommunications Regulation, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, parties shall use their reasonable best efforts to (x) take, resolve any such objections or cause challenge as such Governmental Authority or private party may have to be taken, all other actions and (y) do, or cause such transactions under such law so as to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities permit consummation of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business Agreement. In furtherance of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in parties' obligations under this Section 5.7 or elsewhere in this Agreement6.08, Buyers Purchaser and the Company shall not be required to agree to or accept (but in their discretion may agree to or accept)and, and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought extent required by any Governmental Entity Authority, shall cause, in the case of Purchaser, its current and future Controlled Affiliates to and, in the case of the Company, its current and future affiliates to), propose, negotiate, commit to and enter into one or more settlements, undertakings, conditions, consent decrees, stipulations and other person in connection agreements with any consent or approval required to complete one or otherwise more Governmental Authorities (each, a "Settlement") in connection with the transactions contemplated by this Agreement (including obtaining the requisite consent of such Governmental Authorities), including one or more Settlements that require the Company or Purchaser to restructure the operations of, and sell or otherwise divest or dispose of its assets and/or the assets of, in the case of Purchaser, its current and future Controlled Affiliates and, in the case of the Company, its current and future affiliates (other than any requirement to divest or dispose of capital stock of the Company owned by Stockholder); provided, however, that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or Company shall not take any of their Affiliates the foregoing actions without the consent of the business or assets of any of themPurchaser, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated herebywhich shall not be unreasonably withheld, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership Purchaser shall not take any of the Companies or any of their Subsidiaries, including foregoing actions without the right to vote the capital stock consent of the Companies on all matters properly presented Company and Stockholder if such actions would bind the Company to do something irrespective of whether the shareholders of Stock Purchase Closing occurs, and neither the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or Purchaser nor any of its Subsidiaries from effectively controlling in affiliates shall be required to take (or direct the taking of) any of the foregoing actions or any other action contemplated by this Section 6.08 that would reasonably be expected to have a material respect adverse effect on the business or operations of such Buyer, Purchaser and the Companies or any of their respective Company and its Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects or any material affiliate of Purchaser, in each case with such Person's Subsidiaries taken as a whole, and (C) neither the Company nor any of its affiliates shall be required to derive from take (or direct the consummation taking of) any of the transactions foregoing actions or any other action contemplated by this Agreement or (E) Section 6.08 that would individually or in the aggregate reasonably be expected to significantly and adversely affect have a material adverse effect on the business, financial condition business or results of operations of the Companies Company and their Subsidiaries, its Subsidiaries taken as a whole.
(fg) Subject Notwithstanding anything to the contrary herein, nothing in this Section 5.7(e), 6.08 shall (i) limit either the Company's or Purchaser's right to terminate this Agreement pursuant to Sections 8.01(b)(i) or 8.01(b)(ii) hereof so long as such party has complied in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by all material respects with its obligations under this AgreementSection 6.08, or (ii) require any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use party to amend this Agreement or to waive or forbear from exercising any of its respective reasonable best efforts to contest and resist any such action rights or proceeding and to have vacated, lifted, reversed remedies hereunder or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by under this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Transaction Agreement (Panamsat Corp /New/), Transaction Agreement (Directv Group Inc)
Regulatory Matters. (a) Subject to FSIC II, FSIC III, FSIC IV and CCT II shall as promptly as practicable, jointly prepare and file with the terms SEC the Registration Statement. Each of FSIC II, FSIC III, FSIC IV and conditions of this Agreement, each party will CCT II shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. CCT II, FSIC III, FSIC IV and FSIC II shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. FSIC II shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waiversand FSIC III, approvals, authorizations, permits or orders from FSIC IV and CCT II shall each use reasonable best efforts to furnish all third parties information concerning it and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of its securities as may be reasonably requested by FSIC II in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers FSIC II, FSIC III, FSIC IV and Seller shall, upon request, CCT II shall cooperate with the other parties in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersFSIC II, SellerFSIC III, the CompaniesFSIC IV, CCT II or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other parties (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of BuyersFSIC II, on the one handFSIC III, FSIC IV, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies CCT II shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (FS Investment Corp III), Agreement and Plan of Merger (Corporate Capital Trust II)
Regulatory Matters. (a) Subject to Chemical and TCF shall promptly prepare and file with the terms SEC the Joint Proxy Statement and conditions Chemical shall promptly prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of this Agreement, each party will Chemical and TCF shall use its reasonable best efforts to takehave 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 Chemical and TCF shall thereafter as promptly as practicable mail or cause deliver the Joint Proxy Statement to their respective shareholders and stockholders (as applicable). Chemical 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 TCF shall furnish all information concerning TCF and the holders of TCF Common Stock and TCF Preferred Stock as may be taken, all actions, reasonably requested in connection with any such action.
(b) The Parties shall cooperate with each other and use their reasonable best efforts to promptly prepare and file, or cause to be prepared and filed, all documents necessary documentation, to effect all applications, notices, petitions and filings, to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Regulatory Agencies 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 Regulatory Agencies and Governmental Entities. Without limiting the generality of the foregoing, as soon as practicable and in no event later than sixty (60) days after the date of this Agreement, including preparing Chemical and filing TCF shall, and shall 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. Chemical and TCF 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 practicable all documentation reasonably practicable. Chemical and TCF shall have the right to effect all necessary filingsreview in advance, consentsand, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish 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 concerning itself (relating to TCF or in Chemical, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the Parties shall act reasonably and as promptly as practicable. The Parties 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, to the extent reasonably practicable, consult with the other in advance of any meeting or conference with any Governmental Entity that such Party anticipates to be substantive in connection with the transactions contemplated by this Agreement and, to the extent permitted by such Governmental Entity and applicable Law, give the other Party and/or its counsel the opportunity to attend and participate in such meetings and conferences; and provided that each Party shall promptly advise the other Party with respect to substantive matters that are addressed in any meeting or conference with any Governmental Entity which the other party does not attend or participate in, to the extent permitted by such Governmental Entity and applicable Law.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Chemical and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties TCF shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing. Notwithstanding the foregoing, nothing contained in effect and that prohibitsthis Agreement shall be deemed to require Chemical or TCF (or permit either Party, prevents or restricts consummation without the prior written consent of the other Party) 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 Chemical and its Subsidiaries, taken as a whole, after giving effect to the Merger (measured on a scale relative to TCF and its Subsidiaries, taken as a whole) (a “Materially Burdensome Regulatory Condition”).
(d) Chemical and TCF shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and shareholders and stockholders (as applicable) 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 Chemical, TCF or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(ge) Each of Buyers To the extent permitted by applicable law, Chemical and Seller and the Companies TCF shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party Party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
. As used in this Agreement, the “Requisite Regulatory Approvals” shall mean all regulatory authorizations, consents, orders or approvals from (hi) In furtherance the Federal Reserve Board in connection with the Merger, (ii) the OCC in connection with the Bank Merger and not in limitation of the covenants of the parties contained (iii) any other approvals set forth in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations 3.4 and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent 4.4 that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable are necessary to consummate the transactions contemplated by this Agreement, including the Merger and the Bank Merger, except for any such party shall obtain acceptable alternative arrangementsauthorizations, with consents, orders or approvals the other party’s participationfailure of which to be obtained would not reasonably be expected to have, cooperation and approval; providedeither individually or in the aggregate, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closinga Material Adverse Effect on Chemical.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (TCF Financial Corp), Merger Agreement (Chemical Financial Corp)
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, Buyer shall promptly prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared jointly by Buyer and Seller, will be included. Each of Buyer and Seller shall use its commercially reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Form S-4 or any related matters. Each of Seller and Buyer shall use its commercially reasonable best efforts to have the Form 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 Form S-4 being declared effective, Seller shall thereafter mail or deliver the Proxy Statement to the holders of Seller Common Stock. Buyer 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, and Seller shall furnish all information concerning Seller and the holders of Seller Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to Seller or Buyer, or any of their respective affiliates, directors or officers, should be discovered by Seller or Buyer that should be set forth in an amendment or supplement to either the Form S-4 or the 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 SEC and, to the extent required by applicable law, disseminated to the holders of Seller Common Stock.
(b) In addition to their obligations pursuant to Section 6.1(a), Seller and Buyer shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or "Blue Sky" laws and regulations promulgated thereunder and provide each other with copies of any such filings. Buyer and Seller shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of Buyer Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form 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 Proxy Statement or the Form S-4 shall be filed without the approval of each of Seller and Buyer, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will Buyer and Seller shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other 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 preparing (i) the satisfaction of the conditions precedent to the obligations of Seller (in the case of Buyer) or Buyer (in the case of Seller) to the Merger, (ii) the obtaining of all necessary consents or waivers from third parties, (iii) the obtaining of all waivers, consents, authorizations, permits, orders and filing approvals from, or any exemption by, any Governmental Entities, 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 documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes in consummate the transactions contemplated by this Agreement from (including the Initial 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, Regulatory Agencies or other Governmental Entities. In furtherance (but not in limitation) of the foregoing, Buyer shall, and shall cause Southern Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the Federal Reserve Board or the Division, if applicable, within sixty (60) days after the date hereof. Seller and Buyer 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 Seller or Buyer, 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 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 obtaining of all permits, consents, approvals and authorizations 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 keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bd) Each of Buyers Buyer and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersBuyer, Seller, the Companies, Seller or any of their respective Subsidiaries to any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, Buyer and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies 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 transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.2(d)).
Appears in 2 contracts
Samples: Merger Agreement (Southern Missouri Bancorp, Inc.), Merger Agreement (Southern Missouri Bancorp, Inc.)
Regulatory Matters. (a) Subject GCBS and CVBG shall promptly prepare and file with the SEC the Joint Proxy Statement and GCBS shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of GCBS and CVBG shall use their reasonable best efforts in consultation with their respective legal counsel to have the terms Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of this Agreement, each party will GCBS and CVBG shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. GCBS shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and CVBG shall furnish all information concerning CVBG and the holders of CVBG Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to or after the Effective Time any information relating to either of the parties, or cause their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to be takenany of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to be filedthe shareholders of GCBS and CVBG.
(b) 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 documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. GCBS and CVBG 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 GCBS or CVBG, as the case may be, 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 transactions contemplated by this Agreement. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers GCBS and Seller CVBG shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)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 Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersCVBG, Seller, the Companies, GCBS or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, GCBS and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies CVBG shall promptly advise the other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined below) will not be obtained or that the receipt of any such approval may will be materially delayed.
(he) In furtherance GCBS and not in limitation CVBG shall promptly furnish each other with copies of written communications received by GCBS and CVBG, as the case may be, or any of their respective Subsidiaries from, or delivered by any of the covenants foregoing to, any Governmental Entity in respect of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Greene County Bancshares Inc), Merger Agreement (Civitas Bankgroup Inc)
Regulatory Matters. (a) Subject to GBDC and GCIC shall as promptly as practicable jointly prepare and file with the terms and conditions of this Agreement, each party will SEC the Registration Statement. GBDC shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. GCIC and GBDC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. GBDC shall also use its reasonable best efforts to obtain all necessary filingsstate securities law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and GCIC shall use reasonable best efforts to furnish all third parties information concerning GCIC and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of GCIC Common Stock as may be reasonably requested by GBDC in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers GBDC and Seller shall, upon request, GCIC shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersGBDC, Seller, the Companies, GCIC or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, GBDC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies GCIC shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (GOLUB CAPITAL BDC, Inc.), Merger Agreement (GOLUB CAPITAL INVESTMENT Corp)
Regulatory Matters. (a) Subject As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the terms matters to be submitted to the Company stockholders at the Company Stockholders Meeting and conditions to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the "Joint Proxy Statement/Prospectus") and Parent shall prepare and file with the SEC a registration statement on Form S-4 (of this Agreementwhich the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the "Form S-4"). Each of Parent and the Company shall use reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the transactions contemplated thereby. Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC. Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. Parent shall use its reasonable best efforts to taketake any action required to be taken under any applicable state securities laws in connection with the Merger and each party shall furnish all information concerning it and the others of its capital stock as may be reasonably requested in connection with any such action. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or cause any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4. If at any time prior to the Effective Time any information relating to either of the parties, or their respective Affiliates, officers or directors, should be takendiscovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Parent and the Company. Parent shall also use its reasonable best efforts to obtain prior to the effective date of the Form S-4 all necessary state securities law or "Blue Sky" permits and approvals required in connection with the Merger and the other transactions contemplated by this Agreement and will pay all expenses incident thereto; provided, that Parent shall not be filedrequired to qualify to do business in any jurisdiction in which it is not now so qualified to do business, to file a general consent to service of process in any jurisdiction in which it is not now so qualified or to subject itself to taxation in any jurisdiction in which it is not now so qualified to do business.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all documents necessary documentation, to effect all applications, notices, petitions and filings and to doobtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties or cause to be done, all things necessary, proper Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitations, any filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")). 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 relating to the Company or Parent, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. The terms of this Section 6.1(b) shall not apply to 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 Parent's or the Company's negotiating objectives or strategies or purchase price expectations. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and or Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated hereby.
(bc) Each of Buyers Parent and Seller the Company shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement/Prospectus, the Form S-4 or any other statement, filing, notice or application made by or on behalf of Buyers, SellerParent, the Companies, Company or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance Merger and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the other transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in including, without limitation, any event within 5 business days) and to makesuch statement, filing notice or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period application mode under the HSR Act).
(d) Each of Buyers, on the one hand, and Seller Parent and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with Company shall promptly furnish each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions copies of any Governmental Entity, keep the other party reasonably informed of any communication written communications received by such party from, Parent or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if anyCompany, as the FTCcase may be, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliatesfrom, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation delivered by any of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the businessforegoing to, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation respect of the transactions contemplated by this Agreement.
(ge) Each of Buyers and Seller Parent and the Companies Company shall promptly advise use its reasonable best efforts to take such action as may be required to cause the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation expiration of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that notice periods under the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), HSR Act with respect to the consents, waivers, approvals, authorizations Merger and permits sought to be obtained from third parties (the other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with herein as promptly as possible after the other party’s participation, cooperation and approvaldate hereof; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided furtherhowever, that this obligation shall survive Closing.
(i) As used nothing in this Agreement, Section 6.1 shall require Parent or Merger Sub to agree to the term “Regulatory Laws” means imposition of conditions of any Law enacted by any Governmental Entity relating to requirement of divestiture as a result of antitrust matters, insurance, or regulating competitionconcerns.
Appears in 2 contracts
Samples: Merger Agreement (Alamosa Holdings Inc), Merger Agreement (Airgate PCS Inc /De/)
Regulatory Matters. (a) Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as As promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from following the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of SellerEffective Date, the Companies), its Subsidiaries, directors, officers Company shall prepare and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection file with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of SEC the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicableCompany Proxy Statement. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller The Purchaser and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) Company will cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance the preparation of any meeting or conference withthe Company Proxy Statement. Without limiting the generality of the foregoing, the FTC, Purchaser will use its commercially reasonable efforts to furnish the DOJ or any other Governmental Entity or, in connection Company with any proceeding by a private party, with any other person, the information relating to it (and to the extent permitted New Directors) required by the FTCExchange Act and the rules and regulations promulgated thereunder to be set forth in the Company Proxy Statement three (3) Business Days after the Effective Date. At least five (5) Business Days prior to the filing of the Company Proxy Statement, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation Company shall provide a draft of the covenants Company Proxy Statement to the Purchaser for review. No filing of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted Company Proxy Statement with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by SEC shall occur without the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any written approval of the transactions contemplated hereby as violative of any Law Purchaser or its counsel, which would otherwise preventapproval shall not be unreasonably withheld, materially impede delayed or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, conditioned. The Company shall consider in good faith and Seller and the Companies, on the other hand, shall use their its commercially reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective address any comments provided by the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law Purchaser with respect to such draft of the transactions Company Proxy Statement in a manner that is mutually acceptable to the Company and the Purchaser before filing it with the SEC. Notwithstanding the foregoing, if the Company has given the Purchaser a draft of the Company Proxy Statement for review as provided above and the Purchaser or its counsel shall not have provided written comments on such draft of the Company Proxy Statement within five (5) Business Days thereafter, the Company may assume that the Purchaser has approved of such draft and may proceed to file the Company Proxy Statement with the SEC without being deemed to have breached this Section 6.7 (but only if the information relating to the Purchaser and its Affiliates and contemplated hereby, members and to avoid the New Directors is consistent in all material respects with any information furnished by the Purchaser). The Company shall use its commercially reasonable best efforts to respond as promptly as practicable to and resolve any written or eliminate each oral comments from the SEC as promptly as practicable after such filing and every impediment under any Law that may be asserted by any Governmental Entity with respect to file the transactions contemplated by this Agreement so as to enable the Closing to occur Company Proxy Statement in definitive form as soon as reasonably practicable (thereafter, and each party agrees to consult and cooperate with the other party in that regard. Upon filing of the Company Proxy Statement in definitive form with the SEC, the Company shall thereafter mail or deliver the Company Proxy Statement to its shareholders. If at any time prior to the Closing any event no later than the End Date), in each case as may be required in order to avoid the entry of, occurs or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything information relating to the contrary in this Section 5.7 or elsewhere in this AgreementCompany, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect affiliates, directors or officers, or the business or operations of such Buyer, the Companies Purchaser or any of their respective Subsidiaries and their its Affiliates, (D) officers, or the New Directors, should be discovered by the Company or the Purchaser that should be set forth in an amendment or supplement to the Company Proxy Statement, so that such document would individually not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation light of the transactions contemplated circumstances under which they were made, not misleading, the applicable party shall promptly disclose the same to the other, and the Company shall as soon as practicable file an appropriate amendment or supplement describing such information and, to the extent required by this Agreement applicable Law, cause the same to be disseminated to the Company’s shareholders. No amendment or (E) would individually or in supplement to the aggregate reasonably Company Proxy Statement shall be expected to significantly and adversely affect filed without the business, financial condition or results of operations approval of the Companies and their SubsidiariesPurchaser, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each which approval shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained unreasonably withheld, delayed or that the receipt of any such approval may be materially delayedconditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Acre Realty Investors Inc), Stock Purchase Agreement (Roberts Realty Investors Inc)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will NewMil and Nutmeg (as to information to be included therein pertaining to Nutmeg) shall promptly cause to be prepared and filed with the SEC the Registration Statement for the purpose of registering the NewMil Common Stock to be issued in the Merger, and with the OTS the Proxy Statement for the purpose of soliciting votes on the Merger from the holders of Nutmeg Capital Stock. NewMil and Nutmeg shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC and the Proxy Statement approved by the OTS as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC or OTS staff regarding the information contained in the Registration Statement or Proxy Statement. If at any time after the Registration Statement or Proxy Statement is filed with the SEC or OTS, and prior to the Closing Date, any event relating to Nutmeg is discovered which should be set forth in an amendment of, or a supplement to, the Registration Statement or Proxy Statement, Nutmeg shall promptly inform NewMil and shall furnish NewMil with all necessary information relating to such event whereupon NewMil shall promptly cause an appropriate amendment to the Registration Statement or Proxy Statement to be takenfiled with the SEC or OTS. Upon the effectiveness of such amendment, Nutmeg (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. NewMil shall also use 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 Bank Merger Agreement and Nutmeg shall furnish all information concerning Nutmeg and the holders of Nutmeg 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 prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 effectiveness of the Stockholder Agreement). Nutmeg and NewMil shall have the right to review in advance, including preparing 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 Nutmeg or NewMil and New Milford Savings Bank, as the case may be, 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; provided, however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller Nutmeg shall, upon request, furnish to the other NewMil with all information concerning itself (or in the case of Seller, the Companies), Nutmeg and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement, the Proxy Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, NewMil or any of their respective Subsidiaries New Milford Savings Bank to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, NewMil and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Nutmeg shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Newmil Bancorp Inc), Merger Agreement (Newmil Bancorp Inc)
Regulatory Matters. (a) Subject Huntington and TCF shall promptly prepare and file with the SEC the Joint Proxy Statement and Huntington shall promptly prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus. Huntington and TCF, as applicable, shall use reasonable best efforts to make such filings within forty-five (45) days of the terms and conditions date of this Agreement. The S-4 shall also, each party to the extent required under the Securities Act and the regulations promulgated thereunder, register the shares of New Huntington Preferred Stock (or depositary shares in lieu thereof) that will be issued in the transaction. Each of Huntington and TCF shall use their reasonable best efforts to 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 Huntington and TCF shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. Huntington shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement as promptly as practicable, or cause and TCF shall furnish all information concerning TCF and the holders of TCF 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 be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings (and in the case of the applications, notices, petitions and filings required to be filedobtain the Requisite Regulatory Approvals, use their reasonable best efforts to make such filings within forty-five (45) days of the date of this Agreement), to obtain as promptly as practicable all documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger and the Bank Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Huntington and TCF shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval and any approvals required for the Bank Merger as promptly as reasonably practicable. The parties shall cooperate with each other in connection therewith (including all amendments the furnishing of any information and any reasonable undertaking or commitments that may be required to materials previously filed that are necessary to reflect changes in this Agreement from obtain the Initial Agreement.
(bRequisite Regulatory Approvals) Each of Buyers and Seller shall, upon request, furnish shall respond as promptly as practicable to the requests of Governmental Entities for documents and information. Huntington and TCF 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 concerning itself (relating to TCF or in Huntington, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing and with sufficient opportunity to comment, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information or confidential supervisory information filed under a claim of confidentiality. 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 herein. 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; and provided, that each party shall promptly advise the other party with respect to substantive matters that are addressed in any meeting or conference with any Governmental Entity which the other party does not attend or participate in, to the extent permitted by such Governmental Entity and applicable law.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Huntington and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties TCF shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect would restrain, prevent or delay the Closing, and that prohibits(ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, prevents including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or restricts consummation otherwise, the sale, divestiture or disposition of businesses or assets of Huntington, TCF and their respective Subsidiaries. Notwithstanding the foregoing, nothing contained herein shall be deemed to require Huntington or TCF or any of their respective Subsidiaries, and neither Huntington nor TCF nor any of their respective Subsidiaries shall be permitted (without the written consent of the other party), to take any action, or commit to take any action, or agree to any condition or restriction, in connection with the foregoing or obtaining any permits, consents, approvals and authorizations of Governmental Entities that would reasonably be likely to have a material adverse effect on the Surviving Corporation and its Subsidiaries, taken as a whole, after giving effect to the Merger (a “Materially Burdensome Regulatory Condition”).
(d) Huntington and TCF 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 Joint Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Huntington, TCF or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Huntington and TCF agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in (i) the S-4 will, at the time the S-4 and each amendment or supplement thereto, if any, is filed and becomes effective under the Securities Act, 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, (ii) the Joint Proxy Statement and any amendment or supplement thereto will, at the time of filing and the date of mailing to the respective shareholders of TCF or Huntington and at the time of the Huntington Meeting and the TCF Meeting, 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, in the light of the circumstances under which such statement was made, not misleading, and (iii) any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals will, at the time each is filed, 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 Huntington and TCF further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the S-4 or the Joint Proxy Statement 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 appropriate steps to correct the S-4 or the Joint Proxy Statement.
(ge) Each of Buyers Huntington and Seller and the Companies TCF shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(hf) In furtherance Without limiting the generality of this Section 6.1, TCF shall, and not shall cause its Subsidiaries to, reasonably cooperate with Huntington and its Subsidiaries (including the furnishing of information and by making employees reasonably available) as is reasonably requested by Huntington in limitation order to comply with the requirements of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations Comprehensive Capital Analysis and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller Review and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive ClosingXxxx-Xxxxx Act Stress Testing programs.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (TCF Financial Corp), Merger Agreement (Huntington Bancshares Inc/Md)
Regulatory Matters. (a) Subject to Promptly after the terms and conditions date of this Agreement, each party Brookline and Berkshire shall prepare and file with the SEC the Joint Proxy Statement and Berkshire shall prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus. The parties shall use reasonable best efforts to make such filings within forty (40) days of the date of this Agreement. Each of Berkshire and Brookline shall use its reasonable best efforts to takehave the S-4 declared effective under the Securities Act as promptly as practicable after such filings, and Berkshire and Brookline shall thereafter mail or cause deliver the Joint Proxy Statement to their respective stockholders. Berkshire 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 Brookline shall furnish all information concerning Brookline and the holders of Brookline Common Stock as may be taken, 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 prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings (and in the case of applications, notices, petitions and filings in respect of the Requisite Regulatory Approvals, use their reasonable best efforts to be filedmake such filings within forty (40) days of the date of this Agreement), to obtain as promptly as practicable all documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger, including preparing the Holdco Merger and filing as promptly as practicable the Bank Merger), and to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and such Governmental Entities. Berkshire and Brookline shall have the right to review in advance, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shalland, upon request, furnish 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 concerning itself (relating to Brookline or in Berkshire, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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.
(c) . In furtherance and not in limitation exercising the foregoing right, each of the foregoing, parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act 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 as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, party will keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division apprised of the Department status of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any matters relating to completion of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other . Each party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and shall consult with each the other in advance of any meeting or conference with, the FTC, the DOJ or with any other Governmental Entity or, in connection with any proceeding the transactions contemplated by a private party, with any other person, this Agreement and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other personEntity, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences.
, in each case subject to applicable law. As used in this Agreement, “Requisite Regulatory Approvals” means all regulatory authorizations, consents, orders or approvals (e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to expiration or termination of all statutory waiting periods in respect thereof) (x) takefrom the Federal Reserve Board, or cause to be takenthe RIDOB, all other actions the NYDFS and the MDOB and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained set forth in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations 3.4 and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent 4.4 that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable are necessary to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with including the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this AgreementMerger, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insuranceHoldco Merger and the Bank Merger, or regulating competitionthose the failure of which to be obtained would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Surviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Berkshire Hills Bancorp Inc), Merger Agreement (Brookline Bancorp Inc)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will S1 and Edify (as to information to be included therein pertaining to Edify) shall promptly cause to be prepared and filed with the SEC a registration statement of S1 on Form S-4, including the Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the S1 Common Stock to be issued in the Merger, and for soliciting the approval of this Agreement and the Merger by the stockholders of Edify and S1. S1 and Edify shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing. The parties shall each promptly notify the other upon the receipt of any comments from the SEC or its staff, or any other governmental officials, supply each other with all such correspondence with any Governmental Entity other than confidential information, and cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to S1 or Edify is discovered by such party which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement (including, without limitation, any change in the Fairness Opinion), such party shall promptly inform the other, and shall furnish all necessary information relating to such event whereupon the appropriate party shall promptly cause an appropriate amendment to the Registration Statement or supplement to the Prospectus/Proxy Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment or supplement, the parties (if prior to the meetings of stockholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to their stockholders entitled to vote at such meetings. S1 shall also use 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. Each party shall furnish all information as may be reasonably requested by the other in connection with any such action.
(b) As promptly as practicable following the execution and delivery of this Agreement, if applicable, each of Edify and S1 will prepare and file with the United States Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice (the "DOJ") Notification and Report Forms relating to the transactions contemplated herein and by the Option Agreement if and as required by the HSR Act, as well as comparable pre-merger notification forms required by the merger notification or control laws and regulations of any applicable jurisdiction, as agreed by the parties (the "Antitrust Filings"). The parties will comply with any requests for additional information relating to the Antitrust Filings and will use their reasonable best efforts to secure all required approvals of the Antitrust Filings.
(c) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings (which shall include the Antitrust Filings), and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including without limitation the Merger). Edify and S1 shall have the right to review in advance, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish 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 concerning itself (relating to Edify or in S1 and Merger Sub, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable which appears in connection with any statement, filing, notice or application filing made by or on behalf of Buyers, Seller, the Companieswith, or written materials submitted to, any of their respective Subsidiaries to third party or any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) Agreement and will promptly notify each other of any communication with any Governmental Entity and provide the other with an opportunity to participate in any meetings with a Governmental Entity relating thereto; provided, however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In furtherance and not in limitation exercising the foregoing right, each of the foregoing, parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act 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 as promptly as practicable after and each party will keep the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination apprised of the applicable waiting periods, or receipt status of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation matters relating to contemplation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Acttransactions contemplated herein.
(d) Each of Buyers, on the one hand, S1 and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Edify shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Edify Corp), Merger Agreement (Security First Technologies Corp)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable (but in any case, within sixty (60) calendar days of the terms and conditions date of this Agreement), each party will use its reasonable best efforts to take, or cause to be taken, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Joint Proxy Statement and prospectus and other proxy solicitation materials of YDKN and FNB constituting a part thereof and all actions, to file, or cause to be filed, all documents related documents. YDKN shall prepare and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all FNB such information concerning itself (or in the case of Seller, the Companies), relating to it and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the information required for said documents. YDKN and its legal, financial and accounting advisors shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, conditioned or delayed, such Registration Statement prior to its filing. YDKN agrees to cooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, consents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Joint Proxy Statement. Each of YDKN and FNB agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. FNB also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions this Agreement contemplates. After the SEC has declared the Registration Statement effective under the Securities Act, each of YDKN and FNB shall promptly mail the Joint Proxy Statement to their respective shareholders, and the expenses in connection therewith shall be borne in accordance with Section 9.3(a).
(b) Each of YDKN and FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 YDKN and FNB agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Joint Proxy Statement and any amendment or supplement thereto shall at the dates of mailing to YDKN’s shareholders and FNB’s shareholders, the YDKN Shareholders Meeting and the FNB Shareholders Meeting 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, in the light of the circumstances under which such statements were made, not misleading. Each of YDKN and FNB further agrees that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Joint Proxy Statement 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 an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by Law, disseminated to the shareholders of YDKN.
(c) FNB agrees to advise YDKN, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective reasonable best efforts to promptly (but in any case, within sixty (60) calendar 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, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, 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 Regulatory Agencies and Governmental Entities. YDKN and FNB shall have the right to review in connection with any statementadvance, filingand, notice 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 YDKN or application made by or on behalf of BuyersFNB, Selleras the case may be, the Companies, or and any of their respective Subsidiaries to Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) . 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification FNB and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and YDKN shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its their respective reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB or YDKN to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Regulatory Agencies or Governmental Entities that would reasonably be likely to have a Material Adverse Effect on the Surviving Company after giving effect to the Merger, after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, YDKN agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that prohibits, prevents may be necessary or restricts advisable to effect any mergers and/or consolidations of Subsidiaries of YDKN and FNB following consummation of the Merger.
(e) Each of FNB and YDKN shall, upon request, furnish to the other 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 Registration Statement or any other statement, filing, notice or application made by or on behalf of FNB, YDKN or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(gf) Each of Buyers FNB and Seller YDKN shall promptly provide each other with any written communications received from any Regulatory Agency or Governmental Entity with respect to the transactions contemplated by this Agreement and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayedcontemplates.
(hg) In furtherance YDKN and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld, approvalsconditioned or delayed; provided, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”)however, the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by Law or the rules or regulations of the SEC, the Federal Reserve Board, the FDIC, the OCC, the NCCOB or the NYSE. In addition, the Chief Executive Officers of YDKN and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. YDKN and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (YADKIN FINANCIAL Corp), Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to Old National and Anchor shall promptly prepare and file with the terms and conditions SEC, no later than thirty (30) business days after the date of this Agreement, each party the Proxy Statement, and Old National shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of Old National and Anchor shall use their reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing, and Anchor shall thereafter mail or deliver the Proxy Statement to its shareholders. Old National shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, or cause and Anchor shall furnish all information concerning Anchor and the holders of Anchor 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 be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper 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 twenty (20) business days after the date of this Agreement, including preparing Old National and filing Anchor shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. Old National and Anchor 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 practicable all documentation reasonably practicable. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to effect all necessary filingsobtain the Requisite Regulatory Approvals). Old National and Anchor shall have the right to review in advance, consentsand, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish 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 concerning itself (relating to Anchor or in Old National, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality. 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 herein. 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 party hereto agrees to make or cause to be made an appropriate filing of a Notification Old National and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Anchor shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Old National, Anchor and their respective Subsidiaries. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall require Old National or its Subsidiaries to take, or agree to take, any actions specified in this Section 6.1 that, individually or in the aggregate, would reasonably be expected to have a material and adverse effect on Old National and that prohibitsits Subsidiaries, prevents taken as a whole or restricts consummation Anchor and its Subsidiaries, taken as a whole, or reduce the benefits of the transactions contemplated hereby to such a degree that Old National would not have entered into this Agreement had such conditions, restrictions or requirements been known at the date hereof (a “Materially Burdensome Regulatory Condition”).
(d) Old National and Anchor 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 Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Old National, Anchor or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Old National and Anchor 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 S-4 will, at the time the S-4 and each amendment or supplement thereto, if any, is filed or becomes effective under the Securities Act, 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 and (ii) the Proxy Statement and any amendment or supplement thereto will, at the date it is filed with the SEC, at the date of mailing to shareholders and at the time of Anchor’s meeting of its shareholders to consider and vote upon approval of this Agreement, 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, in the light of the circumstances under which such statement was made, not misleading. Each of Old National and Anchor further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the S-4 or the Proxy Statement 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 appropriate steps to correct the S-4 or the Proxy Statement.
(ge) Each of Buyers Old National and Seller and the Companies Anchor shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Anchor Bancorp Wisconsin Inc)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of PVFC constituting a part thereof and all related documents. PVFC shall prepare and furnish to FNB such information relating to it and its directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementPVFC and its legal, each party will use financial and accounting advisors, shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, such Registration Statement prior to its reasonable best efforts filing. PVFC agrees to takecooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, or cause to be takenconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as PVFC has cooperated as described above, all actions, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of PVFC and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, PVFC shall promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of Buyers PVFC and Seller FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of PVFC and FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of PVFC and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements in this Agreement not false or misleading, to promptly inform the other party thereof and an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of PVFC.
(c) FNB agrees to advise PVFC, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective 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, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, including the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. PVFC and FNB 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 PVFC or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB and its Subsidiaries, including the Surviving Company after giving effect to the Merger, taken as a whole after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, PVFC agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of PVFC and FNB following consummation of the Merger.
(e) Each of FNB and PVFC shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, PVFC or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(df) Each of Buyers, on the one hand, FNB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with PVFC shall promptly provide each other in connection with any filing written communications received from any Regulatory Agency or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c)) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance PVFC and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the Federal Reserve Board, the FDIC, the OCC, the NYSE or NASDAQ. In addition, the Chief Executive Officers of PVFC and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. PVFC and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (PVF Capital Corp), Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to Parent and Susquehanna shall promptly prepare and file with the terms and conditions SEC, no later than 30 days after of the date of this Agreement, each party the Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and Susquehanna shall use its reasonable best efforts to takehave the S-4 declared effective under the Securities Act as promptly as practicable after such filing, and Susquehanna shall thereafter mail or cause deliver the Proxy Statement to its shareholders. 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 Susquehanna shall furnish all information concerning Susquehanna and the holders of Susquehanna Common Stock as may be taken, 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 prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger and the Bank Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Without limiting the generality of the foregoing, including all amendments to materials previously filed that are necessary to reflect changes as soon as practicable and in no event later than thirty (30) business days after the date of this Agreement from the Initial Agreement.
(b) Each of Buyers , Parent and Seller Susquehanna shall, upon requestand shall cause their respective Subsidiaries to, furnish each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. Parent and Susquehanna 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. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to obtain the Requisite Regulatory Approvals). Parent and Susquehanna 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 concerning itself (relating to Susquehanna or in Parent, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality. 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 herein. 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 party hereto agrees to make or cause to be made an appropriate filing of a Notification Parent and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Susquehanna shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Parent, Susquehanna and their respective Subsidiaries. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall require Parent or Susquehanna to take, or agree to take, any actions specified in this Section 6.1 that would reasonably be likely to have a material and adverse effect on Parent and that prohibitsits Subsidiaries, prevents taken as a whole, giving effect to the Merger (measured on a scale relative to Susquehanna and its Subsidiaries, taken as a whole) (a “Materially Burdensome Regulatory Condition”).
(d) Parent and Susquehanna 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 restricts consummation advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Parent, Susquehanna or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Parent and Susquehanna 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 Registration Statement will, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 and (ii) the Proxy Statement and any amendment or supplement thereto will, at the date of mailing to shareholders and at the time of Susquehanna’s meeting of its shareholders to consider and vote upon approval of this Agreement, 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, in the light of the circumstances under which such statement was made, not misleading. Each of Parent and Susquehanna further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the Registration Statement or the Proxy Statement 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 appropriate steps to correct the Registration Statement or the Proxy Statement.
(ge) Each of Buyers Parent and Seller and the Companies Susquehanna shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Susquehanna Bancshares Inc), Merger Agreement (Bb&t Corp)
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 be issued to LFB shareholders in connection with the Merger, the parties hereto shall cooperate in the preparation and filing by HUBCO with the SEC of a Registration Statement including 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 LFB and HUBCO to the terms LFB shareholders together with any and conditions 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 LFB 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 LFB 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 promptly to provide LFB with the information needed to correct such inaccuracy or omission. HUBCO shall promptly furnish LFB 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 LFB shareholders.
(c) LFB shall furnish HUBCO with such information concerning LFB as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to LFB, to comply with Section 5.6(a) hereof. LFB agrees promptly to advise HUBCO if at any time prior to the Shareholders' Meeting, any information provided by LFB in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and promptly to provide HUBCO with the information needed to correct such inaccuracy or omission. LFB shall promptly furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to LFB and the Association to comply with Section 5.6(a) after the mailing thereof to LFB shareholders.
(d) HUBCO shall as promptly as practicable make such filings as are necessary in connection with the offering of this Agreementthe 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. LFB shall promptly furnish HUBCO with such information regarding the LFB shareholders as HUBCO requires to enable it to determine what filings are required hereunder. LFB authorizes HUBCO to utilize in such filings the information concerning LFB and the Association provided to HUBCO in connection with, or contained in, the Proxy Statement-Prospectus. HUBCO shall furnish LFB's counsel with copies of all such filings and keep LFB advised of the status thereof. HUBCO and LFB shall as promptly as practicable file the Registration Statement containing the Proxy Statement-Prospectus with the SEC, and each party of HUBCO and LFB 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 listing on NASDAQ when issued.
(f) The parties hereto will cooperate with each other and use its their reasonable best efforts to take, or cause to be taken, prepare all actionsnecessary documentation, to file, or cause to be filed, effect all documents necessary filings and to doobtain all necessary permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper or advisable third parties and Governmental Entities necessary to consummate the transactions contemplated by this AgreementAgreement as soon as possible, including preparing including, without limitation, those required by the FDIC, the FRB, the OTS, the Department, the SEC and filing as promptly as practicable (if required) 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 documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entitiesfilings with, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish information relating to the other all information concerning itself (or in other, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to subsidiaries, which appears in any filing made with, or written material submitted to, any third party or Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(dg) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with parties will promptly furnish each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions copies of any Governmental Entity, keep the other party reasonably informed of any communication written communications received by such party them or any of their respective subsidiaries from, or given delivered by such party any of the foregoing to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any respect of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance LFB acknowledges that HUBCO is in or may be in the process of acquiring other banks and not financial institutions and that in limitation connection with such acquisitions, information concerning LFB may be required to be included in the registration statements, if any, for the sale of securities of HUBCO or in SEC reports in connection with such acquisitions. HUBCO shall provide LFB and its counsel with copies of such registration statements at the covenants time of the parties contained filing. LFB agrees to provide HUBCO with any information, certificates, documents or other materials about LFB as are reasonably necessary to be included in Sections 5.7(a)such other SEC reports or registration statements, (d), (e) or (f), with respect including registration statements which may be filed by HUBCO prior to the Effective Time. LFB shall use its reasonable efforts to cause its attorneys and accountants to provide HUBCO and any underwriters for HUBCO with any consents, waiverscomfort letters, approvalsopinion letters, authorizations reports or information which are necessary to complete the registration statements and permits sought to applications for any such acquisition or issuance of securities. HUBCO shall reimburse LFB for reasonable expenses thus incurred by LFB should this transaction be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to terminated for any third party with respect to Third Party Consents reason. HUBCO shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, not file with the other party’s participationSEC any registration statement or amendment thereto or supplement thereof containing information regarding LFB unless LFB shall have consented in writing to such filing, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement which consent shall not be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingunreasonably delayed or withheld.
(i) As used in Between the date of this AgreementAgreement and the Effective Time, LFB shall cooperate with HUBCO to reasonably conform LFB's policies and procedures regarding applicable regulatory matters to those of HUBCO, as HUBCO may reasonably identify to LFB from time to time, provided, however, that implementation of such conforming actions may at LFB's discretion be delayed until the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matterstime period following receipt of shareholder and all regulatory approvals, insurance, or regulating competitionas provided at Section 5.15.
Appears in 2 contracts
Samples: Merger Agreement (Hubco Inc), Merger Agreement (Little Falls Bancorp Inc)
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, HomeTrust shall promptly prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared jointly by HomeTrust and Jefferson, will be included. Each of HomeTrust and Jefferson shall use its commercially reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Form S-4 or any related matters. Each of Jefferson and HomeTrust shall use its commercially reasonable best efforts to have the Form 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 Form S-4 being declared effective, Jefferson shall thereafter mail or deliver the Proxy Statement to its shareholders. HomeTrust 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, and Jefferson shall furnish all information concerning Jefferson and the holders of Jefferson Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to Jefferson or HomeTrust, or any of their respective affiliates, directors or officers, should be discovered by Jefferson or HomeTrust that should be set forth in an amendment or supplement to either the Form S-4 or the 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 SEC and, to the extent required by applicable law, disseminated to Jefferson’s shareholders.
(b) In addition to their obligations pursuant to Section 6.1(a), Jefferson and HomeTrust shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide each other with copies of any such filings. HomeTrust and Jefferson shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of HomeTrust Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form 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 Proxy Statement or the Form S-4 shall be filed without the approval of each of Jefferson and HomeTrust, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will HomeTrust and Jefferson shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other 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 preparing (i) the satisfaction of the conditions precedent to the obligations of Jefferson (in the case of HomeTrust) or HomeTrust (in the case of Jefferson) 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 filing approvals from, or any exemption by, any 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 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 documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes in consummate the transactions contemplated by this Agreement from (including the Initial 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, Regulatory Agencies or other Governmental Entities. In furtherance (but not in limitation) of the foregoing, HomeTrust shall, and shall cause HomeTrust Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the Federal Reserve Board, the DFI, the OCC, the FDIC, if applicable, and under the HSR Act, if applicable, within forty-five (45) days after the date hereof. Jefferson and HomeTrust 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 Jefferson or HomeTrust, 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 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 obtaining of all permits, consents, approvals and authorizations 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 keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bd) Each of Buyers HomeTrust and Seller Jefferson shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersHomeTrust, Seller, the Companies, Jefferson or any of their respective Subsidiaries to any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, HomeTrust and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Jefferson 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 transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.2(d)).
Appears in 2 contracts
Samples: Merger Agreement (Jefferson Bancshares Inc), Merger Agreement (HomeTrust Bancshares, Inc.)
Regulatory Matters. (a) Subject NGP shall promptly prepare and file with the SEC the preliminary proxy materials that shall constitute the "PROXY STATEMENT/PROSPECTUS". NGP shall use all reasonable efforts to cause a definitive Proxy Statement/Prospectus and Registration Statement relating to the terms adoption of this Agreement and conditions the transactions contemplated hereby by NGP's stockholders to be filed as promptly as practicable after such filing, and NGP shall thereafter use all reasonable efforts to cause the Registration Statement to become effective and mail or deliver the Proxy Statement/Prospectus to its stockholders. The Price Entities and the members of the Price Group shall be given an opportunity to review and comment on the Proxy Statement/Prospectus and any amendment or supplement thereto prior to filing with the SEC and NGP shall consider any such comments in good faith. NGP shall also use all 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 each member of the Price Group shall furnish all information concerning such party will as may be reasonably requested by NGP in connection with (i) any such action and (ii) any Proxy Statement/Prospectus or Registration Statement. NGP agrees to provide the Price Entities any comments which NGP or its counsel receive from the staff of the SEC with respect to the Proxy Statement/Prospectus promptly after receipt thereof. NGP agrees to correct any information provided by the Price Group that shall have become false or misleading in any respect and NGP further agrees to take all reasonable steps to cause such Proxy Statement/Prospectus as so corrected to be filed with the SEC and disseminated to NGP's stockholders, in each case (i) to the extent requested by the Price Group and (ii) as and to the extent required by the applicable provisions of the Securities Laws.
(b) The parties hereto shall cooperate with each other and use its their reasonable best efforts to take, or cause to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Authorities which are necessary or advisable to consummate the transactions contemplated by this Agreement, including preparing and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Authorities. NGP, on the one hand, and the Prices, AGC and GEI, on the other hand, shall be provided with the opportunity 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 NGP, Newco, AGC, GEI or the Transferred Entities, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Authority 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 practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Authorities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers NGP, on the one hand, and Seller the Prices, AGC and GEI, on the other hand, shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement/Prospectus, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersNewco, SellerNGP, AGC, GEI, the Companies, Transferred Entities or any of their respective Subsidiaries to any Governmental Entity Authority in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of BuyersNGP, on the one hand, and Seller the Prices, AGC and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the CompaniesGEI, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the each other upon receiving any communication from any Governmental Entity the Authority whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (National Golf Properties Inc), Agreement and Plan of Merger and Reorganization (National Golf Properties Inc)
Regulatory Matters. (a) Subject to The Acquiror and the terms Company shall as promptly as practicable jointly prepare and conditions of this Agreement, each party will file with the SEC the Registration Statement. The Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents have the Registration Statement declared effective under the Securities Act and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing applicable state Law as promptly as practicable all documentation after such filing and to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are keep the Registration Statement effective as long as necessary to reflect changes consummate the Mergers. The Company and the Acquiror shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed to their respective stockholders upon such effectiveness. The Company shall use reasonable best efforts to furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested by the Acquiror in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers the Acquiror and Seller shall, upon request, the Company shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any statement, filing, notice event or application made circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by it of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this AgreementRegistration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, and Seller Acquiror and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Company shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (MidCap Financial Investment Corp), Merger Agreement (MidCap Financial Investment Corp)
Regulatory Matters. (a) Subject to Parent and Company shall promptly prepare and file with the terms and conditions SEC, no later than thirty (30) days after the date of this Agreement, each party the Proxy Statement, and Parent shall promptly prepare and file with the SEC the F-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and Company shall use its reasonable best efforts to takehave the F-4 declared effective under the Securities Act as promptly as practicable after such filing, and Company shall thereafter mail or cause deliver the Proxy Statement to its 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 Company shall furnish all information concerning Company and the holders of Company Common Stock as may be taken, 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 prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Without limiting the generality of the foregoing, including all amendments to materials previously filed that are necessary to reflect changes as soon as practicable and in no event later than thirty (30) days after the date of this Agreement from the Initial Agreement.
(b) Each of Buyers , Parent and Seller Company shall, upon requestand shall cause their respective Subsidiaries to, furnish each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. Parent and 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. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to obtain the Requisite Regulatory Approvals). Parent and 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 concerning itself (relating to Company or in Parent, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality and subject to applicable laws relating to the exchange of information. 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 herein. 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; provided that Parent shall be permitted to redact from copies provided to Company of written materials submitted or intended for submission by Parent to OSFI, information relating to the business or operations of Parent to the extent that access to such information is not required for Company to reasonably assess the status of matters relating to consummation of the transactions contemplated by this Agreement, and Parent need not include Company in meetings, or portions of meetings, between Parent (or any of its affiliates) and OSFI in which the business or operations of Parent will be discussed with OSFI, provided that if such a discussion is germane to the status of matters relating to the consummation of the transactions contemplated by this Agreement, Parent will promptly inform Company of the occurrence of such a meeting and the general subject discussed and provide Company with summary information conveying the import of the matters discussed.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Parent and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Company shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall require Parent or Company to take, or commit to take, any action or agree to any condition or restriction that would reasonably be likely to have a material and adverse effect on Parent and that prohibitsits Subsidiaries, prevents taken as a whole, giving effect to the Merger (with such materiality measured on a scale relative to Company and its Subsidiaries, taken as a whole), or restricts consummation (ii) result in an adverse impact on Parent’s status as a financial holding company under the BHC Act (a “Materially Burdensome Regulatory Condition”).
(d) Parent and 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 Proxy Statement, the F-4 or any other 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 Merger and the other transactions contemplated by this Agreement. Each of Parent and Company agrees, as to itself and its Subsidiaries, (i) that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the F-4 will, at the time the F-4 and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 and (ii) that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto will, at the date of mailing to shareholders and at the time of the Company Meeting, 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, in light of the circumstances under which such statement was made, not misleading. Each of Parent and Company further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the F-4 or the Proxy Statement 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 appropriate steps to correct the F-4 or the Proxy Statement.
(ge) Each of Buyers Parent and Seller and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(hf) In furtherance Parent shall, and not in limitation of shall cause the covenants of the parties contained in Sections 5.7(a)Surviving Company to, (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, comply with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing“reporting requirements” of Treasury Regulations Section 1.367(a)-3(c)(6).
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (City National Corp), Merger Agreement (Royal Bank of Canada)
Regulatory Matters. (a) Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions transaction contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Fidelity National Financial, Inc.), Stock Purchase Agreement (Landamerica Financial Group Inc)
Regulatory Matters. (a) Subject to GBDC and GBDC 3 shall as promptly as practicable jointly prepare and file with the terms and conditions of this Agreement, each party will SEC the Registration Statement. GBDC shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. GBDC 3 and GBDC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. GBDC shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and GBDC 3 shall use reasonable best efforts to furnish all third parties information concerning GBDC 3 and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of GBDC 3 Common Stock as may be reasonably requested by GBDC in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers GBDC and Seller shall, upon request, GBDC 3 shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersGBDC, Seller, the Companies, GBDC 3 or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, GBDC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies GBDC 3 shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Golub Capital BDC 3, Inc.), Merger Agreement (GOLUB CAPITAL BDC, Inc.)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of ANNB constituting a part thereof and all related documents. ANNB shall prepare and furnish to FNB such information relating to it and its directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementANNB and its legal, each party will use financial and accounting advisors, shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, such Registration Statement prior to its reasonable best efforts filing. ANNB agrees to takecooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, or cause to be takenconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as ANNB has cooperated as described above, all actions, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of ANNB and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, ANNB shall promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of Buyers ANNB and Seller FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of ANNB and FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of ANNB and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements in this Agreement not false or misleading, to promptly inform the other party thereof and an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of ANNB.
(c) FNB agrees to advise ANNB, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective 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, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, including the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. ANNB and FNB 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 ANNB or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB and its Subsidiaries, including the Surviving Company after giving effect to the Merger, taken as a whole after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, ANNB agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of ANNB and FNB following consummation of the Merger.
(e) Each of FNB and ANNB shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, ANNB or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(df) Each of Buyers, on the one hand, FNB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with ANNB shall promptly provide each other in connection with any filing written communications received from any Regulatory Agency or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c)) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance ANNB and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the FRB, the FDIC, the OCC, the NYSE or NASDAQ. In addition, the Chief Executive Officers of ANNB and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. ANNB and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (FNB Corp/Fl/), Merger Agreement (Annapolis Bancorp Inc)
Regulatory Matters. (a) Subject to Preparing and Filing Regulatory Materials during Clinical Development. During the terms clinical development of the Combination Therapy in accordance with this Agreement and conditions of this Agreementthe Development Plan, each party will use its reasonable best efforts to take, or cause to Affimed shall be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including solely responsible for preparing and filing as promptly as practicable all documentation Regulatory Materials for the Combination Therapy at its sole cost. During the clinical development, Affimed shall (i) be the holder of all Regulatory Materials for the Combination Therapy and (ii) have primary operational responsibility for interactions with the applicable Regulatory Authorities in the Territory with respect to effect all necessary filingsthe Combination Therapy. Upon Affimed’s request, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental EntitiesArtiva shall at its own cost provide reasonable support with respect to preparation of Regulatory Materials for the Combination Therapy, including by providing any data and information pertaining to the Artiva Product necessary for such filings (provided that Artiva may redact proprietary CMC, manufacturing process development information or any other information that Artiva reasonably determines to be competitively sensitive; provided further that if required by the applicable Regulatory Authority and upon Affimed’s request, Xxxxxx shall provide unredacted data and information directly to the Regulatory Authorities). Affimed shall provide Artiva with copies of proposed Regulatory Materials with respect to the Combination Therapy (except to the extent solely relating to the Affimed Product) reasonably prior to submission to the applicable Regulatory Authority, and Artiva shall have the right to review and comment on such Regulatory Materials. [***]. Affimed shall promptly notify Artiva of all amendments Regulatory Materials that Affimed submits for the Combination Therapy and shall promptly provide Artiva with a copy of such Regulatory Materials (except to materials previously filed that are necessary the extent solely relating to reflect changes in this Agreement from the Initial AgreementAffimed Product) submitted to the relevant Regulatory Authorities.
(b) Each Interactions with Regulatory Authorities. Affimed shall be responsible for engaging, interfacing, corresponding or meeting with any Regulatory Authority regarding Combination Therapy in the Territory. Affimed shall notify Artiva of Buyers and Seller shall, upon request, furnish any scheduled meeting or conference with any Regulatory Authority that relates to the other all information concerning itself (or Combination Therapy reasonably in the case advance of Seller, the Companies), its Subsidiaries, directors, officers such meeting and shareholders and such other matters as may be reasonably necessary or advisable in connection shall provide Artiva with any statementmaterial documentation prepared for such meeting or conference prior to such meeting or conference (except to the extent solely relating to the Affimed Product). In addition, filing, notice Affimed shall promptly notify Artiva of any Regulatory Authority meetings or application made by or on behalf of Buyers, Seller, the Companiesinspections, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation other events potentially impacting regulatory status of the foregoing, each party hereto agrees Combination Therapy Trial or the Artiva Product promptly after Affimed becomes aware of such. Artiva shall have the right (but not the obligation) to make or cause to be made an appropriate filing have a reasonable number of a Notification its personnel attend and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and participate in any event within 5 business days) such meetings, conferences and to makeinspections, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend Applicable Laws and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect extent they do not solely relate to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries Affimed Product. Affimed shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreementwithout undue delay provide Artiva with copies of all correspondence to or from, the term “and minutes of material meetings (including, for clarity, telephone conferences) with, any Regulatory Laws” means any Law enacted by any Governmental Entity Authority relating to antitrust mattersDevelopment of the Combination Therapy, insurance(ii) allow Artiva to review and provide comments on any correspondence to Regulatory Authority prior to submission, or regulating competitionand (iii) consider Xxxxxx’s comments to such correspondence in good faith.
Appears in 2 contracts
Samples: Collaboration Agreement (Artiva Biotherapeutics, Inc.), Collaboration Agreement (Artiva Biotherapeutics, Inc.)
Regulatory Matters. (a) Subject to SYBT shall promptly prepare and file with the terms SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of SYBT and conditions of this Agreement, each party will KTYB shall use its reasonable best efforts to takehave the S-4 declared effective under the Securities Act as promptly as practicable after filing and to keep the S-4 effective for so long as necessary to consummate the transactions contemplated by this Agreement. KTYB shall thereafter as promptly as practicable (but in no event later than 15 days after the S-4 becomes effective) mail or deliver the Proxy Statement to the shareholders of KTYB. SYBT 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, or cause and KTYB shall furnish all information concerning KTYB and the holders of KTYB Common Stock as may be reasonably requested in connection with any such action.
(b) The parties shall cooperate with each other and use their reasonable best efforts to be taken, all actions, to promptly prepare and file, or cause to be prepared and filed, all documents necessary documentation, to effect all applications, notices, petitions and filings, to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Regulatory Agencies 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 permits, consents, approvals and authorizations of all Regulatory Agencies and Governmental Entities. Without limiting the generality of the foregoing, as soon as practicable and in no event later than 45 days after the date of this Agreement, including preparing SYBT and filing KTYB shall, and shall 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. SYBT and KTYB 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 practicable all documentation reasonably practicable. SYBT and KTYB shall have the right to effect all necessary filingsreview in advance, consentsand, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the extent practicable, each will consult the other on, in each case subject to applicable laws relating to the exchange of information, the non-confidential portions of all the information concerning itself (relating to KTYB or in SYBT, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties 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.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification SYBT and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties KTYB shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require SYBT or KTYB 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 SYBT and the SYBT Subsidiaries, taken as a whole, after giving effect to the Merger (a “Materially Burdensome Regulatory Condition”).
(d) SYBT and that prohibitsKTYB shall, prevents upon request, furnish each other with information concerning themselves, their Subsidiaries, directors, officers and shareholders and other matters as may be reasonably necessary or restricts consummation advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of SYBT, KTYB or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(ge) Each of Buyers To the extent permitted by applicable law, SYBT and Seller and the Companies KTYB shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such the receiving party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may Requisite Regulatory Approval will be materially delayed.
. As used in this Agreement, the “Requisite Regulatory Approvals” shall mean all regulatory authorizations, consents, orders or approvals from (hi) In furtherance the FRB, the FDIC and not in limitation of the covenants of the parties contained KDFI, and (ii) any other approvals set forth in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations 3.4 and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent 4.4 that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable are necessary to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with including the other party’s participation, cooperation Merger and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insuranceBank Merger, or regulating competitionthose other authorizations, consents, orders or approvals the failure of which to be obtained would reasonably be expected to have a Material Adverse Effect on SYBT.
Appears in 2 contracts
Samples: Merger Agreement (Stock Yards Bancorp, Inc.), Merger Agreement (Stock Yards Bancorp, Inc.)
Regulatory Matters. (a) Subject The parties hereto shall promptly cooperate with each other in the preparation and filing of the Form S-1, the Prospectus and the Proxy Statements relating to the terms meetings of shareholders of the Company and conditions the depositors of Keystone to be held pursuant to Section 5.2 of this AgreementAgreement (the "Company Proxy Statement" and the "Keystone Proxy Statement," respectively) under the Securities Act and the Exchange Act, each party will as applicable. Each of the Holding Company, Keystone and the Company shall use its reasonable best efforts to takehave the Form S-1 declared effective under the Securities Act, the Company Proxy Statement approved for mailing in definitive form under the Exchange Act and the Keystone Proxy Statement approved or not objected to under the Banking Law and the regulations of the FDIC as promptly as practicable after such filings and the receipt of non-objection or approval, as the case may be, of the Application for Conversion by the FDIC and the Department, and thereafter the Company shall promptly mail to its shareholders the Company Proxy Statement and Prospectus and Keystone shall promptly mail, or cause to be taken, all actionsin the case of the Prospectus make available, to fileits depositors the Keystone Proxy Statement and the Prospectus. The Holding Company also shall use its reasonable best efforts to obtain all necessary state securities law or "blue sky" permits and approvals required to carry out the issuance of Holding Company Common Stock in connection with the Merger and the Conversion. The Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any of the foregoing actions. In the event that the Company has issued any securities, through its employee benefits plans or cause otherwise, in any offering which should have been registered or qualified under Federal or state securities laws which were not so registered or qualified, the Company shall promptly take such action as the parties hereto mutually agree in order to be filedeliminate, reduce or mitigate, to the extent possible, any contingent or other liability which the Company may have as a result of such offering.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all documents necessary documentation, to effect all applications, notices, petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper Governmental Entities and third parties which are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Conversion, the Merger and the Bank Merger). Keystone and the Company shall have the right to review in advance, and to the extent practicable each will consult with 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 any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers Keystone and Seller the Company shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their respective Subsidiaries, directors, directors and officers and shareholders of the Company and such other matters as may be reasonably necessary or advisable in connection with the Form S-1 or any other statement, filing, notice or application made by or on behalf of Buyers, SellerKeystone, the CompaniesHolding Company, the Company or any of their respective Subsidiaries the Bank to any Governmental Entity in connection with the Conversion, the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Acthereby.
(d) Each of Buyers, on the one hand, and Seller Keystone and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with Company shall promptly furnish each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions copies of any Governmental Entity, keep the other party reasonably informed of any communication written communications received by such party from, Keystone or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if anyCompany, as the FTCcase may be, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliatesfrom, (D) would individually or delivered by any of the foregoing to, any Governmental Entity in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation respect of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholehereby.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (First Colonial Group Inc), Merger Agreement (KNBT Bancorp Inc)
Regulatory Matters. Without limiting the generality of the undertakings pursuant to this Section 6.5, the parties hereto shall (ai) Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, provide or cause to be taken, all actions, provided as promptly as reasonably practicable to file, or cause to be filed, all Governmental Entities with jurisdiction over any Antitrust Laws information and documents and to do, or cause to be done, all things requested by any Governmental Entity as necessary, proper or advisable to consummate permit consummation of the transactions contemplated by this Agreement, including preparing and filing any notification and report form and related material required under the HSR Act and any additional consents and filings under any other Antitrust Laws as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in following the date of this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or provided that in the case of Sellerthe filing under the HSR Act, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to filing shall be made an appropriate filing of a Notification and Report Form pursuant on or prior to the HSR Act with respect to tenth (10th) business day following the transactions contemplated by date of this Agreement (unless otherwise agreed to in writing by the parties hereto)) and thereafter to respond as promptly as practicable after the date hereof (and in to any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any request for additional information and or documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, made under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one handapplicable Antitrust Laws, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entityterms set forth in Section 6.5(e) hereof, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other take such actions and (y) do, or cause to be done, all other things necessary, proper as are necessary or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities obtain prompt approval of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that by any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private expiration of applicable waiting periods. Neither Parent nor the Company shall commit to or agree (or permit their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other party challenging (such consent not to be unreasonably withheld or delayed). Each of the parties hereto will (i) use its reasonable best efforts to contest on the merits, through litigation in United States District Court (or state court, if applicable) or other applicable courts or through administrative or other procedures, any objections or opposition raised by any Governmental Entity or other Person in respect of the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and (ii) use its respective reasonable best efforts to contest defend on appeal any favorable Order on the merits in United States District Court (or state court, if applicable) or in other applicable courts or through administrative or other and resist any such action or proceeding and (iii) use its reasonable best efforts to have vacated, lifted, overturned or reversed on appeal any Orders issued by a United States District Court or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts Governmental Entity prohibiting the consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Regulatory Matters. (a) Subject to Newcourt and CIT shall promptly prepare the terms Proxy Circular, and conditions of this Agreement, each party will CIT shall use its reasonable best efforts to takefile the Proxy Circular with the SEC not later than 20 days after the date of this Agreement. Each of Newcourt and CIT shall thereafter mail the Proxy Circular to its respective shareholders. CIT shall use its reasonable best efforts to prepare and file with the SEC not later than 20 days after the date of this Agreement a registration statement on the appropriate form with respect to the shares of CIT Common Stock to be issued upon exchange of any Exchangeable Shares (the "Registration Statement") and shall take all actions necessary to maintain such Registration Statement current and effective for as long as shall be required to enable the holders of Exchangeable Shares to sell the shares of CIT Common Stock received upon exchange thereof. Each of Newcourt and CIT shall use its reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing. CIT 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.
(b) Newcourt shall file the Proxy Circular in all Canadian jurisdictions where the Proxy Circular is required to be filed and with the SEC, the TSE and the ME in accordance with the applicable rules and regulations thereof. The parties shall use all reasonable efforts to obtain all orders required from the applicable Canadian securities authorities to permit the issuance and first resale of (i) the Exchangeable Shares and the shares of CIT Common Stock to be issued pursuant to the Arrangement, (ii) the shares of CIT Common Stock to be issued upon exchange of the Exchangeable Shares from time to time and (iii) the shares of CIT Common Stock to be issued from time to time upon the exercise of the Replacement Options, in each case without qualification with or approval of or the filing of any document, including any prospectus or similar document, or cause the taking of any proceeding with, or the obtaining of any further order, ruling, or consent from, any Governmental Entity or regulatory authority under any Canadian federal, provincial or territorial securities laws or pursuant to be takenthe rules and regulations of any regulatory authority administering such laws, or the fulfilment of any other legal requirement in any such jurisdiction (other than, with respect to such first resales, any restrictions on transfer by reason of, among other things, a holder being a "control person" of Newcourt or CIT for purposes of Canadian federal, provincial or territorial securities laws).
(c) The parties hereto shall cooperate with each other and use their reasonable best efforts to prepare and file not later than 10 days after the date of this Agreement all necessary documentation (including, with respect to applications, notices, and filings made by the parties prior to the date of this Agreement, all actionsupdated and/or supplemental information required in connection therewith), to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Arrangement) and for the parties and their Subsidiaries to conduct their respective businesses after the Closing Date in substantially the same manner as conducted currently, including preparing and filing as promptly as practicable all documentation or which are required in order to maintain in effect all necessary filings, consents, waivers, approvals, any governmental authorizations, permits licenses or orders from all third approvals pursuant to which either of the parties or their Subsidiaries carries on its business as currently conducted. Newcourt and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, CIT each will furnish to the other for 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 concerning itself (relating to Newcourt or in CIT, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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.
(c) . In furtherance and not in limitation exercising the foregoing right, each of the foregoing, parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act other with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to makeobtaining of all permits, or cause to be madeconsents, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in of all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from and Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper Entities necessary or advisable to consummate the transactions contemplated by this AgreementAgreement and, such in each case subject to applicable law relating to the exchange of information, each party shall obtain acceptable alternative arrangements, with will keep the other party’s participation, cooperation and approval; provided, that apprised of the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity status of matters relating to antitrust matterscompletion of the transactions contemplated herein. Promptly upon the reasonable request of CIT, insuranceNewcourt will provide, or regulating competition.and will use its reasonable efforts to cause each other Co-
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cit Group Inc), Agreement and Plan of Reorganization (Cit Group Inc)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Sterling and Empire shall promptly cause the Registration Statement to be prepared and filed with the SEC. Sterling and Empire shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing thereof. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Empire is discovered by Empire which should be set forth in an amendment of, or a supplement to, the Registration Statement, Empire shall promptly inform Sterling, and shall furnish Sterling with all necessary information relating to such event, whereupon Sterling shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of Empire and Sterling (if prior to the meeting of the stockholders of Empire pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its stockholders entitled to vote at such meeting. Sterling shall also use 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 Institution Merger Agreement and Empire shall furnish all information concerning Empire and the holders of Empire 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Institution Merger). Empire and Sterling 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 Empire or Sterling, as the case may be, 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. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated herein. Sterling shall be primarily responsible for the preparation and timely filing of all applications seeking the Required Regulatory Approvals. Sterling shall provide Empire with a copy of all such filings and all correspondence in respect of such applications.
(bc) Each of Buyers and Seller Empire shall, upon request, furnish to the other Sterling with all information concerning itself (or in the case of Seller, the Companies), Empire and its Subsidiaries, directors, officers and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries Sterling to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Sterling and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Empire shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 2 contracts
Samples: Merger Agreement (Sterling Financial Corp /Wa/), Merger Agreement (Empire Federal Bancorp Inc)
Regulatory Matters. (a) Subject Liberty and PRISA shall promptly prepare, and PRISA shall as promptly as practicable file with the SEC an amendment to the terms F-4 (in which the Proxy Statement will be included) and conditions the 8-A12(b)s which shall comply as to form, in all material respects, with the applicable provisions of this Agreementthe Securities Act and the Exchange Act and which amendment to the F-4, 8-A12(b)s and Proxy Statement shall be in form and substance reasonably satisfactory to Liberty and PRISA prior to filing. Each of Liberty and PRISA shall use their reasonable best efforts to have the F-4 and 8-A12(b)s declared effective under the Securities Act and the Exchange Act, respectively, as promptly as practicable after such filing, and Liberty shall thereafter file and mail or deliver the Proxy Statement to its stockholders. PRISA shall also use its reasonable best efforts to ensure that the Depositary prepares and files with the SEC the F-6s in such form as complies, in all material respects, with the applicable provision of the Securities Act and which shall be in form and substance reasonably satisfactory to Liberty and PRISA prior to filing. PRISA shall use its reasonable best efforts to ensure the F-6s are declared effective under the Securities Act prior to the Exchange Effective Time. No amendment or supplement to the Proxy Statement or the Registration Statements will be made by Liberty or PRISA without the approval of the other party (such approval not to be unreasonably withheld or delayed). Liberty and PRISA each party will advise the other, promptly after they receive notice thereof, of the time when the Registration Statements have become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of PRISA ADSs issuable in connection with the Share Exchange for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statements or comments thereon and responses thereto or requests by the SEC for additional information.
(b) The information relating to PRISA and its Subsidiaries to be contained in the Proxy Statement, the F-4, either PRISA Prospectus and any supplements thereto and any circulars or documents issued to shareholders, employees or debenture holders of PRISA and the information relating to PRISA and its Subsidiaries that is provided by PRISA and its Representatives for inclusion in any other document filed with any other regulatory agency in connection herewith, shall not at (i) the time each of the F-4 and 8-A12(b) is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Liberty, (iii) the time of the Liberty Stockholder Meeting, or (iv) the Exchange Effective Time contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (provided that the foregoing covenant is not made with respect to information provided by Liberty or its Representatives for inclusion in such documents). If, at any time prior to the Exchange Effective Time, any event or circumstance relating to PRISA or any of its Subsidiaries, or their respective officers or directors, should be discovered by PRISA which should be set forth in an amendment or a supplement to the F-4 or Proxy Statement, PRISA shall promptly inform Liberty, and the parties shall cooperate reasonably in connection with preparing and disseminating any such required amendment or supplement.
(c) The information relating to Liberty and its Affiliates that is provided by Liberty or its Representatives for inclusion in the Proxy Statement, the F-4, either PRISA Prospectus and any supplements thereto and any circulars or documents issued to shareholders, employees or debenture holders of PRISA or in any other document filed with any other regulatory agency in connection herewith, will not at (i) the time the F-4 is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Liberty, (iii) the time of the Liberty Stockholder Meeting, or (iv) the Exchange Effective Time contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (provided that the foregoing covenant is not made with respect to information provided by PRISA or its Representatives for inclusion in such documents). If, at any time prior to the Exchange Effective Time, any event or circumstance relating to Liberty, its officers, directors or affiliates, should be discovered by Liberty which should be set forth in an amendment or a supplement to the F-4 or Proxy Statement, Liberty shall promptly inform PRISA, and the parties shall cooperate reasonably in connection with preparing and disseminating any such required amendment or supplement.
(d) As soon as practicable, (i) the PRISA Board shall, with the reasonable assistance of Liberty, prepare reports (Informe del consejo de administracion) to be made available to the holders of PRISA Shares in accordance with applicable Law (the “Board Reports”) in connection with the PRISA Shareholder Meeting containing information required by the SCL and (ii) PRISA shall prepare and arrange to have registered with and verified by the CNMV (x) the PRISA In-Kind Prospectus which PRISA In-Kind Prospectus shall be in form and substance reasonably satisfactory to Liberty and (y) a prospectus (Folleto) to effectuate the PRISA Warrant Issuance (the “PRISA Warrant Prospectus”) and/or, if required by the CNMV and subject to its approval, an increase in capital in cash in respect of the PRISA Rights Offer (the “PRISA Subscription Prospectus” and, either the PRISA Warrant Prospectus or the PRISA Subscription Prospectus or both of them together, as applicable, together with the PRISA In-Kind Prospectus the “PRISA Prospectuses”). PRISA will use its reasonable best efforts to take, or cause the PRISA Prospectuses to receive the required registrations with and verifications of the CNMV as soon as practicable after the date of this Agreement and to cause the definitive PRISA Prospectuses to be takenmade available to the holders of PRISA Shares in accordance with applicable Law as soon as reasonably practicable. PRISA will advise Liberty, promptly after it receives notice thereof, of the time when the PRISA Prospectuses have received the required registration with and verification of the CNMV or if any supplement or amendment has been registered with the CNMV (any such supplement or amendment to be in form and substance reasonably satisfactory to Liberty). Liberty shall cooperate with PRISA in the preparation of the PRISA Prospectuses and shall provide all actionsinformation concerning Liberty and the holders of Liberty Common Stock as may be reasonably requested in connection with the preparation and filing of the PRISA Prospectuses.
(e) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents and to do, or cause to be done, all things necessary, proper Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, including preparing and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Liberty and PRISA 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 PRISA or Liberty, as the case may be, and any of their respective Subsidiaries, that appears in any material filing made with, or material written materials submitted to, any PRISA Lender with respect to the Debt Restructuring, the CNMV or the SEC in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. In exercising the foregoing rights of review and consultation, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits approvals and authorizations of all Governmental Entities necessary or orders from all third parties and Governmental Entities, including all amendments advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and the Initial AgreementAncillary Agreements and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.
(bf) Each of Buyers Liberty and Seller PRISA shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statements, the Board Reports and the PRISA Prospectuses or any other statement, filing, notice or application made by or on behalf of BuyersLiberty, Seller, the Companies, PRISA or any of their respective Subsidiaries or Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this AgreementAncillary Agreements.
(g) Each of Buyers Liberty and Seller and the Companies PRISA shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement and the Ancillary Agreements that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval approval of such Governmental Entity will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance PRISA and not in limitation Liberty shall (i) promptly inform the other of any communication to or from any Governmental Entity regarding the transactions contemplated hereby except to the extent prohibited by applicable Law or such Governmental Entity, (ii) give the other prompt notice of the covenants commencement of the parties contained in Sections 5.7(a), (d), (e) any Action by or (f), before any Governmental Entity with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreementhereby, such party shall obtain acceptable alternative arrangements, with and (iii) keep the other party’s participation, cooperation and approval; provided, that reasonably informed as to the costs paid to status of any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingsuch Action.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Business Combination Agreement (Liberty Acquisition Holdings Corp.)
Regulatory Matters. (a) Subject to FSKR and FSK shall as promptly as practicable jointly prepare and file with the terms SEC the Registration Statement. Each of FSKR and conditions of this Agreement, each party will FSK shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. FSK and FSKR shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. FSK shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and FSKR shall use reasonable best efforts to furnish all third parties information concerning FSKR and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of FSKR Common Stock as may be reasonably requested by FSK in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers FSKR and Seller shall, upon request, FSK shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersFSKR, Seller, the Companies, FSK or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, FSKR and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies FSK shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject The Company shall promptly prepare and file with the SEC the Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use their reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing, and the Company shall thereafter mail or deliver the Proxy Statement to its stockholders. Parent and the Company will promptly notify each other of the receipt of comments from the SEC and of any request by the SEC for amendments or supplements to the terms S-4 or the Proxy Statement or for additional information, and conditions will promptly supply each other with copies of this Agreementall correspondence between the parties and the SEC with respect thereto. If, at any time prior to the Effective Time, any event should occur relating to or affecting the Company, Parent or Merger Sub, or to their respective Subsidiaries, officers or directors, which event should be described in an amendment or supplement to the S-4 or the Proxy Statement, the parties promptly will inform each party will other and cooperate in preparing, filing and having declared effective or clearing with the SEC and, if required by applicable federal or state securities laws, distributing to the Company’s stockholders such amendment or supplement. Parent shall also use its reasonable best efforts to takeobtain all necessary state securities law or “blue sky” permits and approvals required to carry out the transactions contemplated by this Agreement, or cause 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 efforts to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement, including preparing and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. 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 relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that either Parent or the Company, as applicable, may restrict the other’s access to any documents or information to the extent that it reasonably concludes, after consultation with outside counsel, that (i) any legal provision of any Governmental Entity applicable to such party requires such party or its Subsidiaries to restrict access to any of its properties or information, (ii) providing such access would result in the loss of the attorney-client privilege, and (iii) such document discusses the pricing or dollar value of the transactions contemplated by this Agreement. In exercising the foregoing rights of review and consultation, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers The Company and Seller Parent shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement and the S-4 or any other statement, filing, notice or application made by or on behalf of Buyersthe Company, Seller, the Companies, Parent or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, The Company and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Parent shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval approval of such Governmental Entity will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Udate Com Inc)
Regulatory Matters. (a) Subject to The Company shall promptly prepare and file with the terms and conditions SEC, no later than forty-five (45) days after the date of this Agreement, each party will the Proxy Statement, and Parent shall cooperate with the Company in connection with the preparation of the Proxy Statement. The Company shall use its reasonable best efforts to takehave the Proxy Statement cleared by the SEC as promptly as practicable after such filing and shall thereafter as promptly as practicable (but in any event no later than ten (10) business days thereafter) mail or deliver the Proxy Statement to its stockholders. The Company shall as promptly as reasonably practicable notify Parent of the receipt of any oral or written comments from the staff of the SEC relating to the Proxy Statement. The Company shall cooperate with Parent and provide Parent with the opportunity to review and comment on (i) the draft of the Proxy Statement (including each amendment or supplement thereto) and (ii) all written responses to requests for additional information by and replies to written comments of the staff of the SEC, prior to the filing of the Proxy Statement with or sending such to the SEC, and the Company will (A) consider Parent’s comments in good faith, (B) not make any statement therein regarding Parent or any of its affiliates without Parent’s consent (not to be unreasonably withheld), except as may be required by applicable Law and (C) provide to Parent copies of all such filings made and correspondence with the SEC or its staff with respect thereto. If at any time prior to the Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to its stockholders.
(b) 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 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 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, Parent and the Company shall, and shall cause their respective Subsidiaries to, prepare and file any applications, notices and filings required to be filed with any regulatory agency in order to obtain the Requisite Regulatory Approvals; provided, that, notwithstanding that GB is required to execute an application under the Bank Merger Act, Parent shall, and shall cause its Subsidiaries to, prepare such application and be responsible for the approval process relating thereto. In connection with the foregoing, any filing party shall request confidential treatment for any information another party shall request be kept confidential, to the extent permitted by applicable Law, and shall use reasonable best efforts to cause such request to be granted. Subject to Section 6.1(c), Parent and the Company shall use, and shall 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 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 with, or cause written materials 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 parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to be takenthe obtaining of all permits, consents, approvals and authorizations of all actions, to file, or cause to be filed, all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement, and each party will keep the other parties apprised promptly of the status of filings and applications, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and communications with Governmental Entities, including and all amendments other matters relating to materials previously filed that are necessary to reflect changes in this Agreement from completion of the Initial Agreement.
(b) transactions contemplated hereby. Each of Buyers and Seller shall, upon request, furnish to party shall consult with the other all information concerning itself (parties in advance of any meeting or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection conference with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller Parent and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, Company shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned overturned, any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing; provided that Parent shall not have any obligation to litigate or participate in the litigation of any action, suit or proceeding, whether judicial or administrative, in order to oppose or defend any action, suit or proceeding by the Federal Reserve Board, the OCC, the FDIC, the Commissioner or the SEC. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require Parent or permit the Company to take any action, or commit to take any action, or agree to any condition or restriction that would (i) reasonably be expected to have a Material Adverse Effect on Parent and its Subsidiaries, taken as a whole after giving effect to the transactions contemplated hereby (but measured on a scale relative to the Company and that prohibitsits Subsidiaries, prevents or restricts consummation taken as a whole as of the date hereof), (ii) cause Parent to lose, suffer any material diminution in or have otherwise materially and adversely modified or impaired any of its legislative or regulatory rights, statuses or privileges or have an adverse effect on the regulatory exemptions available to Parent due to any of the foregoing or (iii) cause Parent or any of its Subsidiaries (other than SFCSB, GB and their respective Subsidiaries) to either (A) divest, restrict or be subject to any limit on any lawful business or activity (other than, in the case of this clause (iii), either (I) the closure of offices, or similar requirements, resulting from competition issues or (II) regulatory conditions that would be de minimis) or (B) be subject to any prior notice or approval rights with respect to the ability to engage in any lawful business or activity (each of clauses (i), (ii), and (iii), a “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 Proxy Statement or any other 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 Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(ge) Each of Buyers and Seller To the extent permitted by applicable Law, Parent and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity pertaining to the Merger whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, “Requisite Regulatory Approvals” shall mean all regulatory authorizations, consents, orders or approvals from the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust mattersFDIC, insuranceOCC, or regulating competitionthe Federal Reserve Board, the Commissioner, the Massachusetts BBI, MHPF, DIF and the New Hampshire Banking Department.
Appears in 1 contract
Regulatory Matters. (a) Subject SNBV agrees to prepare a registration statement on Form S-4 or other applicable form (as may be amended, the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause “Registration Statement”) to be takenfiled by SNBV with the SEC in connection with the issuance of SNBV Common Stock in the Merger (including the prospectus of SNBV and the proxy statement and other proxy solicitation materials of 1st Service constituting a part thereof (as may be amended, the “Proxy Statement/Prospectus”) and all actionsrelated documents). Provided that 1st Service has fulfilled its obligations under Section 7.1(d) in all material respects, SNBV agrees to file, or cause to be filed, the Registration Statement and the Proxy Statement/Prospectus with the SEC as promptly as reasonably practicable. Each of SNBV and 1st Service agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. SNBV also agrees to 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. After the Registration Statement is declared effective under the Securities Act, 1st Service shall promptly mail the Proxy Statement/Prospectus to its shareholders. If at any time prior to the Effective Time any information relating to 1st Service, SNBV or their respective affiliates, officers or directors, should be discovered by 1st Service or SNBV which should be set forth in an amendment or supplement to either the Registration Statement or the Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the shareholders of 1st Service.
(b) Each of 1st Service and SNBV 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, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper Governmental Entities and other third parties which are necessary or advisable to consummate the transactions contemplated by this Agreement, Agreement (including preparing the Merger) and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Notwithstanding the foregoing, including all amendments nothing contained herein shall be deemed to materials previously filed require SNBV to take any action, or commit to take any action, or agree to any conditions or restrictions, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Governmental Entities or other third parties that are necessary would reasonably be expected to reflect changes result in this Agreement from the Initial Agreementimposition of a condition or restriction of the type referred to in Section 8.2(c).
(bc) 1st Service and SNBV shall promptly inform each other of any material communication from, and shall give the other a reasonable opportunity to review in advance any material communication intended to be given by it to, any Governmental Entity regarding any of the transactions contemplated by this Agreement (other than any confidential portion thereof that relates solely to the party receiving such communication from or providing such communication to such Governmental Entity).
(d) Each of Buyers 1st Service and Seller SNBV shall, upon request, furnish to the other with all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the preparation of the Registration Statement, the Proxy Statement/Prospectus or any other statement, filing, notice or application to be made by or on behalf of Buyers, Seller, the Companies, any Party or any of their respective its Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto . 1st Service further agrees to make or cause to be made an cooperate with SNBV and SNBV’s counsel and accountants in requesting and obtaining appropriate filing of a Notification opinions, consents and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (letters from its financial advisor and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, independent registered public accounting firm in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party toRegistration Statement, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or Proxy Statement/Prospectus and any other Governmental Entity and of any communication received such statement, filing, notice or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesapplication.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Southern National Bancorp of Virginia Inc)
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement and using commercially reasonable best efforts to file within forty-five (45) days thereof, BayCom shall prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared jointly by BayCom and PEB, will be included. Each of BayCom and PEB shall use its commercially reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Form S-4 or any related matters. BayCom shall use its commercially reasonable best efforts to have the Form 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 Form S-4 being declared effective, PEB shall thereafter mail or deliver the Proxy Statement to its shareholders. BayCom 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, and PEB shall furnish all information concerning PEB and the holders of PEB Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to PEB or BayCom, or any of their respective affiliates, directors or officers, should be discovered by PEB or BayCom that should be set forth in an amendment or supplement to either the Form S-4 or the 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 SEC and, to the extent required by applicable law, disseminated to PEB’s shareholders.
(b) In addition to their obligations pursuant to Section 6.1(a), PEB and BayCom shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide each other with copies of any such filings. BayCom shall advise PEB, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of BayCom Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form S-4, comments thereon from the SEC’s staff and responses thereto or request of the SEC or its staff for additional information. No amendment or supplement to the Proxy Statement or the Form S-4 shall be filed without the approval of each of PEB and BayCom, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will BayCom and PEB shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other 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 preparing (i) the satisfaction of the conditions precedent to the obligations of PEB (in the case of BayCom) or BayCom (in the case of PEB) 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 antitrust laws, waivers, consents, authorizations, permits, orders and filing approvals from, or any exemption by, any Governmental Entities and the taking of all commercially reasonable steps as may be necessary to obtain expirations or terminations of waiting periods under antitrust laws, an approval or waiver from, or to avoid an action or proceeding by, any 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 documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes in 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, Regulatory Agencies or other Governmental Entities. PEB and BayCom 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 PEB or BayCom, 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 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 obtaining of all permits, consents, approvals and authorizations 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 keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, (i) BayCom shall furnish PEB and its legal counsel for review and comment draft copies of the public portions of BayCom's and United Business Bank's applications to banking Regulatory Agencies at least three (3) business days prior to filing such applications, and (ii) as promptly as possible, but in no event later than thirty (30) days after the date of this Agreement (subject to timely cooperation and provision of information by PEB and its legal counsel), BayCom shall make all required applications and filings with banking Regulatory Agencies for approval of the Merger and the Bank Merger, and shall furnish copies of the public portions of such applications and filings to PEB and its legal counsel within three (3) business days after such filings. In addition, BayCom shall furnish to PEB and its legal counsel within three (3) business days after BayCom's receipt thereof, copies of all non-confidential correspondence from the Initial Agreementbanking Regulatory Agencies with respect to such applications and filings.
(bd) Each of Buyers BayCom and Seller PEB shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersBayCom, Seller, the Companies, PEB or any of their respective Subsidiaries to any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, BayCom and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies PEB 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 transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.1(e)).
Appears in 1 contract
Samples: Merger Agreement (BayCom Corp)
Regulatory Matters. (a) Subject For the purposes of holding the Westchester Stockholders Meeting (as such term is hereinafter defined) and qualifying under applicable federal and state securities laws the Valley Common Stock to be issued to Westchester stockholders in connection with the terms Merger, as soon as practicable and conditions no later than sixty (60) days following the date of this Agreement, subject to full cooperation of both parties and their respective advisors and accountants, the parties shall (i) jointly prepare, and Valley shall file with the SEC, a Registration Statement on Form S-4, including a prospectus and (ii) jointly prepare, a proxy statement, satisfying all applicable requirements of applicable state and federal laws, including the Securities Act, the Exchange Act and applicable state securities laws and the rules and regulations thereunder (such proxy statement and prospectus in the form mailed by Westchester to its stockholders 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 Valley under the Securities Act with the SEC to register the Valley Common Stock for sale, including the Proxy Statement-Prospectus, are referred to herein as the “Registration Statement”). Prior to the filing of the Proxy Statement-Prospectus and the Registration Statement, each party shall consult with the other party with respect to such filings and shall afford the other party and their representatives reasonable opportunity to comment thereon. Westchester shall mail or deliver the Proxy Statement/Prospectus to its shareholders promptly following the date of effectiveness of the Registration Statement.
(b) Each party shall furnish to the other party with such information concerning itself and its affiliates as is necessary comply with Section 5.6(a) hereof. Each party agrees promptly to advise the other party if at any time prior to the Effective Time, any information provided by such party in the Proxy Statement-Prospectus or Registration Statement becomes incorrect or incomplete in any material respect and promptly to provide the information needed to correct such inaccuracy or omission. Each party shall promptly furnish to the other party such supplemental information as may be necessary to comply with Section 5.6(a). The information relating to a party to be provided for inclusion or incorporation by reference in the Proxy Statement-Prospectus or Registration Statement, any filing pursuant to Rule 165 or Rule 425 under the Securities Act, or in any other document filed with any other Governmental Entity in connection herewith, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading.
(c) Valley shall as promptly as practicable make such filings, if any, as are necessary in connection with the offering of the Valley Common Stock with applicable state securities agencies and shall use its commercially reasonable best efforts to takequalify the offering of such stock under applicable state securities laws at the earliest practicable date. Westchester shall promptly furnish Valley with such information regarding Westchester stockholders as Valley requires to enable it to determine what filings are required hereunder. Westchester authorizes Valley to utilize in such filings the information concerning Westchester and TWB provided to Valley in connection with, or contained in, the Proxy Statement-Prospectus. Valley shall furnish Westchester’s counsel with copies of all such filings and keep Westchester advised of the status thereof. Valley shall promptly notify Westchester of all communications, oral or written, with the SEC concerning the Registration Statement and the Proxy Statement-Prospectus.
(d) Valley shall cause the Valley Common Stock issuable pursuant to the Merger, to be taken, listed on the Nasdaq Global Select Market (the “Nasdaq”) at the Effective Time.
(e) The parties hereto will cooperate with each other and use commercially reasonable efforts to prepare all actionsnecessary documentation, to file, or cause to be filed, effect all documents necessary filings and to doobtain all necessary permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper or advisable third parties and Governmental Entities necessary to consummate the transactions contemplated by this AgreementAgreement as soon as possible, including preparing those required by the SEC, the OCC, the FDIC, the FRB, the NYDFS, the Department of Treasury of New Jersey and filing the Delaware Department of State. Valley and VNB shall use their best efforts to cause their applications to the OCC and the FRB to be filed within sixty (60) days of the date of this Agreement. Westchester shall cooperate with Valley to provide all information requested in writing by Valley to complete such application as promptly soon as practicable possible, and in all documentation events within ten (10) days of request from Valley. Each of Valley and Westchester shall use its commercially reasonable efforts to effect all necessary filingsresolve objections, consentsif any, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments which may be asserted with respect to materials previously filed that are necessary to reflect changes in this Agreement from or the Initial Agreementtransactions contemplated hereby under any applicable law, statute, order, rule, regulation, judgment, writ, decree, injunction, policy and/or guideline of any Governmental Entity or by any Governmental Entity.
(bf) Each of Buyers Valley and Seller shallWestchester shall have the right to review in advance, upon request, furnish and to the other extent practicable each will consult with the other, in each case subject to applicable laws relating to the exchange of information, with respect to, all written information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries submitted to any third party or Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) , provided, that Westchester shall not have the right to review portions of material filed by Valley with a Governmental Entity that contain competitively sensitive business or other proprietary information or confidential supervisory information filed under a claim of confidentiality. In furtherance and not in limitation exercising the foregoing right, each of the foregoing, each party hereto parties agrees to make or cause to be made an appropriate filing of a Notification act reasonably and Report Form pursuant to as promptly as practicable. Each party agrees that it will consult with the HSR Act other party with respect to the obtaining of all consents and approvals of third parties and Regulatory Authorities necessary or advisable to consummate the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, party will keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division apprised of the Department status of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject matters relating to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation completion of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on including advising the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any a Governmental Entity the consent or approval consents and approvals of which is required for the consummation of the Merger and the other transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval required consents and approvals from a Governmental Entity will not be obtained or that the receipt of any such approval consents and approvals may be materially delayed.
(h) In furtherance . Except for non-material routine communications between counsel and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect a Governmental Entity relating to the consentsregulatory approval process or status, waivers, approvals, authorizations and permits sought to be obtained from third parties (each party shall consult with the other than from in advance of any meeting or conference with any Governmental Entities) (“Third Party Consents”), the costs paid to any third party Entity in connection with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to As promptly as practicable following the terms Acceptance Date (and conditions following the expiration of any subsequent offering period), if the adoption of this AgreementAgreement by the Company’s stockholders is required by applicable legal requirements in order to consummate the Merger, each party will the Company shall prepare and file with the SEC the Proxy Statement and shall use its all reasonable best efforts to respond to any comments of the SEC or its staff 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. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent 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 or the Merger. If at any time prior to the Company Stockholders’ Meeting (defined below) there shall occur any event that is required to be set forth in an amendment or supplement to the Proxy Statement, the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. The Company shall consult with Parent prior to mailing any Proxy Statement, or any amendment or supplement thereto, to which Parent timely and reasonably objects. Parent shall cooperate with the Company in the preparation of the Proxy Statement or any amendment or supplement thereto.
(b) Each of Parent and the Company shall, and shall cause its Subsidiaries to, use all reasonable best efforts to, (i) take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger, including, without limitation, obtaining any third party consent which may be required to be obtained in connection with the Merger and the other transactions contemplated by this Agreement, to remove any restraint or prohibition preventing the consummation of the Merger and the other transactions contemplated by this Agreement, and, subject to the conditions set forth in Article VII hereof, to consummate the Merger and the other transactions contemplated by this Agreement and (ii) obtain (and cooperate with the other party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity which is required to be obtained by Parent or the Company, respectively, or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated by this Agreement. The parties hereto shall cooperate with each other and promptly prepare and file all necessary documentation, and to effect all applications, notices, petitions and filings (including, to the extent necessary, any notification required by the HSR Act), 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 Merger and the other transactions contemplated by this Agreement. 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 respective Subsidiaries, which appear in any filing made with any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement (other than Items 4 through 8, and any attachments thereto, of any Notification filed under the HSR Act). 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 herein. Each of Parent and the Company shall use its reasonable best efforts to resolve any objections that may be asserted by any Governmental Entity with respect to this Agreement, including preparing the Merger or the other transactions contemplated by this Agreement. Each of Parent and filing the Company shall not, and shall cause its respective Subsidiaries not to, engage in any action or transaction that would materially delay or materially impair the ability of the Company, Parent or Merger Sub to consummate the Merger, or of Parent to consummate any commitment to any Company Representative made in connection therewith. Parent and the Company further covenant and agree, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, to use reasonable best efforts to prevent the entry, enactment or promulgation thereof, as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreementcase may be.
(bc) Each of Buyers Parent and Seller the Company shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their respective Subsidiaries, directors, officers officers, employees and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice notice, application or application other document made by or on behalf of Buyers, SellerParent, the Companies, Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller Parent and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval such consent or approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject In connection with the solicitation of approval of the Merger by the stockholders of NCRIC and the registration of the shares of PRA Common Stock to be issued upon consummation of the Merger, the parties will prepare, and PRA will file with the SEC, the S-4 and the Proxy Statement (both of which shall comply as to form, in all material respects, with the provisions of the Securities Act, the Exchange Act and other applicable law). PRA and NCRIC will use all reasonable effects to respond to the terms comments of the SEC staff with respect to the S-4 and conditions the Proxy Statement and to have the S-4 and the Proxy Statement declared effective by the SEC as soon as practicable. As soon as practicable after the S-4 is declared effective, NCRIC shall mail or deliver the Proxy Statement to its stockholders. The information provided and to be provided by PRA and NCRIC for use in the S-4 and the Proxy Statement will not, in the case of the S-4 on the date it becomes effective, and in the case of Proxy Statement on such date and on the date on which approval of the Merger by the stockholders of NCRIC is obtained, contain any untrue statement of material fact or omit to state any material fact required to be stated in this AgreementAgreement or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Each of PRA and NCRIC agree promptly to correct any such information provided by it which shall have become false or misleading in any material respect and to take all steps necessary to file with the SEC and have declared effective or cleared by the SEC any amendment or supplement to the S-4 or the Proxy Statement so as to correct the same and to cause the Proxy Statement so corrected to be distributed to the stockholders of NCRIC to the extent required by applicable law. To the extent that any opinion regarding the tax consequences of the Merger is required with respect to the S-4 or the Proxy Statement, PRA and NCRIC will both cause each party will of their respective tax counsel to issue substantially similar opinions in the form contemplated herein. PRA shall not be required to maintain the effectiveness of the Registration Statement for the purpose of resale by the affiliates of PRA and NCRIC, as such term is used in Rule 145 of the SEC.
(b) The parties shall use its all reasonable best commercial efforts to takecause their respective independent auditors to render any consent required by the SEC to include its report on the NCRIC consolidated financial statements or the PRA consolidated financial statements, as the case may be, in the S-4 and to refer to said accountants as experts in the S-4 with respect to the matters included in said report.
(c) To the extent applicable, NCRIC and PRA shall prepare and file with all necessary Governmental Authorities (i) a Notice on Form A and related documents and (ii) the preacquisition notification and report forms and related material on Form E in connection with the Merger.
(d) PRA will prepare and file, and NCRIC will cooperate with and assist PRA in preparing and filing, all statements, applications, correspondence or cause forms required to be takenfiled with appropriate state securities law regulatory authorities to register or qualify the shares of PRA Common Stock to be issued upon consummation of the Merger or to establish an exemption from such registration or qualification (the "BLUE SKY FILINGS").
(e) Pursuant to the HSR Act, all actions, to PRA and NCRIC will promptly prepare and file, or cause to be filed, the HSR Act Report with the Pre-Merger Notification Agencies in respect of the transactions contemplated by this Agreement, which filing shall comply as to form with all documents requirements applicable thereto and all of the data and information reported therein shall be accurate and complete in all material respects. Each of PRA and NCRIC will promptly comply with all requests, if any, of the Pre-Merger Notification Agencies for additional information or documentation in connection with the HSR Act Report forms filed by or on behalf of each of such parties pursuant to dothe HSR Act, and all such additional information or documentation shall comply as to form with all requirements applicable thereto and shall be accurate and complete in all material respects.
(f) Each party shall provide to the other, (i) promptly after filing thereof, copies of all statements, applications, correspondence or forms filed by such party prior to the Closing Date with state securities law regulatory authorities, the SEC, the Pre-Merger Notification Agencies, the Insurance Regulators and any other Governmental Authority in connection with the transactions contemplated by this Agreement and (ii) promptly after delivery to, or cause to be donereceipt from, such regulatory authorities, all things necessarywritten communications, proper letters, reports or other documents relating to the transactions contemplated by this Agreement.
(g) 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, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Authorities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Authorities. PRA and NCRIC 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 PRA or NCRIC, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Authority in connection with the transactions contemplated by this Agreement. The cooperation and coordination of each party required under this Section 6.1 shall include giving timely public notice of any public hearings regarding the transactions contemplated by this Agreement, including preparing having its representatives attend and filing testify at such public hearings. In addition, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Authorities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bh) Each of Buyers PRA and Seller NCRIC shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders/stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of BuyersPRA, Seller, the Companies, NCRIC or any of their respective Subsidiaries to any Governmental Entity Authority in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission PRA and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies NCRIC shall promptly advise the each other upon receiving any communication from any Governmental Entity the Authority whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Proassurance Corp)
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of IRGB constituting a part thereof and all related documents. IRGB shall prepare and furnish to FNB such information relating to it and its directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementIRGB, each party will use and its reasonable best efforts legal, financial and accounting advisors, shall have the right to takereview in advance and approve, or cause which approval shall not be unreasonably withheld such Registration Statement prior to be takenits filing. IRGB agrees to cooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, all actionsconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as IRGB has cooperated as described above, FNB agrees to file, or cause to be filed, the Registration Statement and the Proxy Statement with the SEC as promptly as reasonably practicable. Each of IRGB and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof. FNB also agrees to use its reasonable best efforts to obtain all documents necessary state securities law or “Blue Sky” permits and approvals required to docarry out the transactions contemplated by this Agreement. After the Registration Statement is declared effective under the Securities Act, IRGB shall each promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of IRGB and FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 IRGB and FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall 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 IRGB and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement to be false or misleading with respect to any material fact, or cause to omit to state any material fact necessary to make the statements therein not false or misleading, to promptly inform the other parties thereof and an appropriate amendment or supplement describing such information shall be donefiled promptly with the SEC and, to the extent required by law, disseminated to the shareholders of IRGB and/or FNB.
(c) FNB agrees to advise IRGB, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective reasonable best efforts to promptly prepare and file all things necessarynecessary documentation, proper 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 Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. IRGB and FNB 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 IRGB or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies 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 by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB and its Subsidiaries (including the Surviving Company after giving effect to the Merger) taken as a whole after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, IRGB agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing as promptly as practicable all documentation to effect all necessary such petitions and filings, and in obtaining such permits, consents, waiversapprovals and authorizations of third parties, approvals, authorizations, permits or orders from all third parties Regulatory Agencies and Governmental Entities, including all amendments that may be necessary or advisable to materials previously filed that are necessary to reflect changes in this Agreement from effect any mergers and/or consolidations of Subsidiaries of IRGB and FNB following consummation of the Initial AgreementMerger.
(be) Each of Buyers FNB and Seller IRGB shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, IRGB or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(df) Each of Buyers, on the one hand, FNB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies IRGB shall promptly advise the other upon receiving any communication from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c)) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance IRGB and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the FDIC, the OCC, the NYSE or FINRA. In addition, the Chief Executive Officers of IRGB and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. IRGB and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Sterling and Klamath shall promptly cause the Registration Statement to be prepared and filed with the SEC. Sterling and Klamath shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing thereof. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Klamath or Sterling is discovered by Klamath or Sterling, as applicable, which should be set forth in an amendment of, or a supplement to, the Registration Statement, the discovering party shall promptly inform the other party with all relevant information relating to such event, whereupon Sterling shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of Klamath and Sterling (if prior to the meetings of their shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to their shareholders entitled to vote at such meetings. Sterling shall also use 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 Institution Merger Agreement and Klamath shall furnish all information concerning Klamath and the holders of Klamath 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Institution Merger). Klamath and Sterling 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 Klamath or Sterling, as the case may be, 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. In addition, including preparing counsel to Klamath shall be provided with a draft of all regulatory applications prior to their submission and filing shall have a period of five business days within which to review and comment on such applications. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated herein.
(bc) Each of Buyers and Seller shall, upon request, Klamath shall furnish to the other Sterling with all information concerning itself (or in the case of Seller, the Companies), Klamath and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries Sterling to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Sterling and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Klamath shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Sterling and Big Sky (as to information to be included therein pertaining to Big Sky) shall promptly cause to be prepared and filed with the SEC a registration statement of Sterling on Form S-4, including the Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the Sterling Common Stock to be issued in the Merger and for soliciting the adoption and approval of this Agreement and the Merger by the stockholders of Big Sky. Sterling and Big Sky shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing thereof. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Big Sky is discovered by Big Sky which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Proxy Statement/Prospectus, Big Sky shall promptly inform Sterling, and shall furnish Sterling with all necessary information relating to such event, whereupon Sterling shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of Big Sky and Sterling (if prior to the meeting of the stockholders of Big Sky pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its stockholders entitled to vote at such meeting. Sterling shall also use 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 Institution Merger Agreement and Big Sky shall furnish all information concerning Big Sky and the holders of Big Sky 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Institution Merger). Big Sky and Sterling 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 Big Sky or Sterling, as the case may be, 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. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated herein.
(bc) Each of Buyers and Seller Big Sky shall, upon request, furnish to the other Sterling with all information concerning itself (or in the case of Seller, the Companies), Big Sky and its Subsidiaries, directors, officers and shareholders stockholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries Sterling to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Sterling and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Big Sky shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable, the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy Statement and prospectus and other proxy solicitation materials of PFC constituting a part thereof and all related documents. PFC shall prepare and furnish to FNB such information relating to it and its directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementPFC and its legal, each party will use financial and accounting advisors shall have the right to review in advance and approve, which approval shall not be unreasonably withheld, such Registration Statement prior to its reasonable best efforts filing. PFC agrees to takecooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, or cause to be takenconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as PFC has cooperated as described above, all actions, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of PFC and FNB agrees to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, PFC shall promptly mail at its expense the Proxy Statement to its shareholders.
(b) Each of Buyers PFC and Seller FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of PFC and FNB agree that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements in this Agreement not misleading. Each of PFC and FNB further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements in this Agreement not false or misleading, to promptly inform the other parties thereof and an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of PFC and/or FNB.
(c) FNB agrees to advise PFC, promptly after FNB receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for an amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective 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, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, including the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Regulatory Agencies and Governmental Entities. FNB agrees that it will file all appropriate applications or notices with each Regulatory Agency or Governmental Entity having jurisdiction over the transactions contemplated by this Agreement within 60 days following the date hereof. PFC and FNB 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 PFC or FNB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a Material Adverse Effect on FNB, including the Surviving Company after giving effect to the Merger, after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, PFC agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of PFC and FNB following consummation of the Merger.
(e) Each of FNB and PFC shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersFNB, Seller, the Companies, PFC or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance Merger and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the other transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in including, without limitation, any event within 5 business days) and to make, or cause pro forma financial information to be made, included in the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR ActRegistration Statement on Form S-4).
(df) Each of Buyers, on the one hand, FNB and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with PFC shall promptly provide each other in connection with any filing written communications received from any Regulatory Agency or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c)) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance PFC and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the FDIC, the OCC, the NYSE or FINRA. In addition, the Chief Executive Officers of PFC and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. PFC and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) Subject to OBDC and OBDE shall as promptly as practicable jointly prepare and file with the terms and conditions of this Agreement, each party will SEC the Registration Statement. OBDC shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated by this Agreement, including preparing and filing Registration Statement declared effective under the Securities Act as promptly as practicable all documentation after such filing and to effect keep the Registration Statement effective as long as necessary to consummate the Mergers. OBDE and OBDC shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be promptly mailed or delivered to their respective stockholders upon such effectiveness. OBDC shall also use its reasonable best efforts to obtain all necessary filingsstate securities Law or “blue sky” permits and approvals required to carry out the Transactions, consentsif any, waivers, approvals, authorizations, permits or orders from and OBDE shall use reasonable best efforts to furnish all third parties information concerning OBDE and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes the holders of OBDE Common Stock as may be reasonably requested by OBDC in this Agreement from the Initial Agreementconnection with any such action.
(b) Each of Buyers OBDC and Seller shall, upon request, OBDE shall cooperate with the other in the preparation of the Registration Statement and shall furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters reasonably requested as may be reasonably necessary or advisable in connection with the Registration Statement or any statement, filing, notice other filing or application made by or on behalf of BuyersOBDC, Seller, the Companies, OBDE or any of their respective Consolidated Subsidiaries to any Governmental Entity in connection with the transactions contemplated Mergers and the other Transactions. Prior to the Effective Time, each party hereto shall promptly notify the other party (i) upon becoming aware of any event or circumstance that is required to be described in an amendment to the Registration Statement or in a supplement to the Joint Proxy Statement/Prospectus and (ii) after the receipt by this Agreementit of any comments of the SEC with respect to the Joint Proxy Statement/Prospectus or the Registration Statement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject Subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, OBDC and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies OBDE shall promptly advise the other upon receiving any communication from any Governmental Entity Entity, the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Transactions, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayeddelayed or conditioned.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to In connection with the terms Company Stockholders’ Meeting, the Company shall, as promptly as practicable, prepare and conditions of this Agreement, each party will file with the SEC a preliminary proxy statement and shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause a definitive proxy statement relating to the Company Stockholders’ Meeting (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 and its staff. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. If at any time prior to the Company Stockholders’ Meeting there shall occur any event that is required to be set forth in an amendment or supplement to the Proxy Statement, the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it or on its behalf for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall as promptly as practicable prepare and mail to its stockholders an amendment or supplement to correct such information to the extent required by applicable Laws. The Company shall consult with Parent prior to mailing any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. Parent shall cooperate with the Company in the preparation of the Proxy Statement or any amendment or supplement thereto. Subject to Section 4.3, the Proxy Statement shall include the recommendation of the Company Board that the stockholders of the Company approve this Agreement (the “Company Board Recommendation”).
(b) Each of Parent and the Company shall, and shall cause its Subsidiaries to, use its best efforts to, (i) take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger and the other transactions contemplated by this Agreement, including obtaining any Third Party consent which may be required to be obtained in connection with the Merger and the other transactions contemplated by this Agreement, to take all necessary or appropriate action to remove any restraint or prohibition preventing the consummation of the Merger and the other transactions contemplated by this Agreement, and, subject to the conditions set forth in Article VI, to consummate the Merger and the other transactions contemplated by this Agreement and (ii) obtain (and cooperate with the other party to obtain) any consent, authorization, order or approval (including as required under the Exon-Xxxxxx Amendment, as applicable) of, or any exemption by, any Governmental Entity that is required to be obtained by Parent or the Company, respectively, or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated by this Agreement. The parties hereto shall cooperate with each other and promptly prepare and file all necessary documentation, and to effect all applications, notices, petitions and filings (including any notification required by the HSR Act), to obtain as promptly as practicable all permits, consents, approvals, authorizations of all Third Parties and Governmental Entities, and the expiry or termination of all applicable waiting periods, which are required to consummate the Merger and the other transactions contemplated by this Agreement. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations (including as required under the Exon-Xxxxxx Amendment, as applicable) of all Third Parties and Governmental Entities, and the expiration or termination of the applicable waiting period under the HSR Act or under any other Antitrust Law, necessary or advisable to consummate the transactions contemplated by this Agreement, including preparing Agreement and filing as promptly as practicable all documentation each party will keep the other apprised of the status of matters relating to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from completion of the Initial Agreement.
(b) transactions contemplated herein. Each of Buyers Parent and Seller the Company shall, upon requestand each shall cause its respective Subsidiaries to, furnish use its best efforts to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as resolve any objections that may be reasonably necessary or advisable in connection with any statement, filing, notice or application made asserted by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity with respect to this Agreement, the Merger or the other transactions contemplated by this Agreement. Subject to Section 4.3, each of Parent and the Company shall not, and each of Parent and Company shall cause its respective Subsidiaries not to, engage in connection any action or transaction that would materially delay or materially impair the ability of the Company, Parent or Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement. Parent and the Company further covenant and agree, with respect to any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would materially adversely affect the ability of the parties hereto to consummate the transactions contemplated by this Agreement, to use their respective best efforts to prevent the entry, enactment or promulgation thereof, as the case may be, including by defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of BuyersParent, on the one hand, and Seller and the CompaniesCompany, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c5.1(b) to obtain all requisite approvals permits, consents, approvals, authorizations (including as required under the Exon-Xxxxxx Amendment, as applicable) of all Third Parties and authorizations Governmental Entities, and expirations or terminations of applicable waiting periods for the transactions contemplated by this Agreement, use its reasonable best efforts to Agreement under the HSR Act or any other Antitrust Law (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably and/or its counsel informed of any communication received by such party from, or given made by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated herebyby this Agreement; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party and/or its counsel to review in advance any submission or communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) intended to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other personPerson, and to the extent permitted not prohibited by the FTC, the DOJ or such other applicable Governmental Entity or other personPerson, give take all reasonable steps necessary to provide the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences. Without limitation of the foregoing, Parent and the Company shall not extend any waiting period under the HSR Act or any other antitrust or merger control Laws nor enter into any agreement with the Federal Trade Commission or the Antitrust Division of the United States not to consummate the transactions contemplated by this Agreement except with the prior written consent of the other party hereto. In exercising the foregoing rights, each of the parties hereto shall act reasonably and as promptly as practicable. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.1(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials (Parent or the Company as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 5.1(c), materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation of the Company Common Stock or the business of the Company and its Subsidiaries. For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Act, the Xxxxxxx Act, the HSR Act, the Federal Trade Commission Act, and all Laws, Governmental Orders and judicial doctrines that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
(ed) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect Parent further agrees to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable its best efforts to (x) take, take or cause to be taken, all other actions and (y) use its best efforts to do, or cause to be done, all other things necessary, proper necessary or advisable to consummate promptly cause expiration or termination of all applicable waiting periods or to obtain requisite consents, permits, approvals and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities authorizations for consummation of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in resolve any event no later than objections or suits) by any Governmental Entity under any Antitrust Law, which actions and things shall include to the End Date)extent necessary, in each case as may be required in order Parent’s agreement to avoid the entry (i) sell, hold separate or otherwise dispose of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conductpermit the sale, restrictholding separate or other disposition of, operate, invest or otherwise change the assets Assets or business of the Companies to be acquired in this transaction or any of their AffiliatesParent’s or its Affiliate’s other assets or businesses now owned or hereafter acquired by Parent in a manner which would resolve such objections or suits; (ii) terminate any existing relationships and contractual rights and obligations; and (iii) amend or terminate such existing licenses or other Intellectual Property agreements and/or enter into such new licenses or other Intellectual Property agreements (and in each case, unless such requiremententer into agreements with the relevant Governmental Entity giving effect thereto); provided, conditionhowever, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 Parent may expressly condition any such sale, holding separate or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept)other disposal, and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree any agreement to take any such action or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit conduct its business in any material respect the ownership or operation by the Companiesmanner, their Subsidiaries, either Buyer or any of their Affiliates upon consummation of the business or assets of any of them, or to compel Merger and the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the other transactions contemplated hereby, (B) seeks and nothing in this Agreement shall require the Company to impose limitations on the ability of either Buyer agree to acquireany such sale, holdholding separate or other disposal, and any agreement to take any action or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of conduct its Subsidiaries from effectively controlling business in any material respect the business or operations of such Buyermanner, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected prior to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the Merger and the other transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) hereby. Subject to the obligations set forth under this Section 5.7(e5.1(d), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions any transaction or agreement contemplated by this Agreement, or under any other agreement contemplated hereby, Seller Antitrust Law (A) each of Parent and Buyers each the Company shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderGovernmental Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement so as to permit such consummation by the second (2nd) Business Day before the Outside Date and (B) each of Parent and the Company shall defend, at its own cost and expense, any action or actions, whether judicial or administrative, against it or its Affiliates in connection with the transactions contemplated by this Agreement.
(ge) Each of Buyers and Seller Except as otherwise provided in Section 5.1(c) with respect to Antitrust Counsel Only Material, Parent and the Companies Company shall, upon request, furnish each other with all information concerning themselves, their respective Subsidiaries, directors, officers, employees and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice, application or other document made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(f) Parent and the Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the consent in respect of any filing, investigation or approval of which is required for consummation of the transactions contemplated by inquiry concerning this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement.
(g) From the date of this Agreement until the Effective Date neither Parent nor the Company will enter into or consummate any acquisition or license agreement which would present a material risk of making it materially more difficult to obtain any approval or authorization required in connection with the transactions contemplated herein with respect to the HSR Act or any other applicable Antitrust Law.
(h) Notwithstanding anything to the contrary in this Agreement (other than the foregoing provisions of this Section 5.1 and of Section 7.3(f)), in connection with obtaining any approval or consent from any Person with respect to the Merger and the other transactions contemplated by this Agreement, no party or its Affiliates shall be required to pay or commit to pay to such Person any cash or other consideration, make any commitment or to incur any liability or other obligation (provided, however, that such party shall obtain acceptable alternative arrangements, with give the other party’s participation, cooperation and approval; provided, that party hereto the costs paid opportunity to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingmake such payments).
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to The Buyer and each Seller will (i) as promptly as practicable and before the terms expiration of any relevant legal deadline, but in no event later than ten Business Days following the execution and conditions delivery of this Agreement, each party will use its reasonable best efforts to takeif required under applicable Law, or cause file with the United States Federal Trade Commission and the United States Department of Justice the notification and report form required for the Transaction and any information required to be takenprovided therewith pursuant to the HSR Act, all actionswhich forms will specifically request early termination of the waiting period prescribed by the HSR Act, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing (ii) as promptly as practicable all documentation to effect all necessary and before the expiration of any relevant legal deadline, file with any other Governmental Authority, any other filings, consentsreports, waivers, approvals, authorizations, permits information and documentation required for the Transaction pursuant to any other applicable Laws. The Buyer and each Seller will furnish to each other’s counsel such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or orders from all third parties submission that is necessary under the HSR Act and Governmental Entities, including all amendments any other applicable Laws. All filing and other similar fees payable in connection with the filings to materials previously filed that are necessary be made pursuant to reflect changes in this Agreement from Section 4.3(a)(i) shall be borne and paid by the Initial AgreementBuyer.
(b) Each The Buyer and each Seller shall use their respective commercially reasonable efforts to obtain promptly any clearance required under the HSR Act and any other applicable Laws for the consummation of Buyers the Transaction and will keep each other apprised of the status of any material communications with, and any reasonable inquiries or requests for additional information from, any Governmental Authority and will comply promptly with any such inquiry or request from any such Governmental Authority.
(c) Subject to Section 4.3(a), the Buyer and each Seller shall, upon request, furnish agree to instruct their respective counsel to cooperate with each other and use their respective commercially reasonable efforts to facilitate and expedite the identification and resolution of any issues arising under the HSR Act and any other applicable Laws at the earliest practicable dates. Such commercially reasonable efforts and cooperation will include causing their respective counsel (i) to inform promptly the other all information concerning itself of any oral communication with, and provide (as permitted) copies of written communications (excluding competitively sensitive information) with, any Governmental Authority regarding any such filings or applications or any such transaction, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of such Governmental Authority. None of the Buyer, each Seller nor any of their respective Affiliates or Representatives will independently contact any Governmental Authority or participate in any meeting or discussion with any Governmental Authority in respect of any such filings, applications, investigation or other inquiry without giving, in the case of Sellerthe Sellers and their respective Affiliates or Representatives, the CompaniesBuyer, and in the case of the Buyer and its Affiliates or Representatives, the Sellers, prior notice of the meeting and, to the extent permitted by the relevant Governmental Authority, the opportunity to attend and participate (which, at the request of the Buyer or the Sellers, as applicable, will be limited to outside antitrust counsel only); provided, its Subsidiariesfurther, directorshowever, officers and shareholders and such other matters as may the Buyer will be reasonably necessary solely responsible for the content of any written or advisable in connection oral substantive communications with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.Authority. 48
(cd) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizationsSection 4.3(a), if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take administrative or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiryjudicial Action, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding Action by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by challenging any of the FTCTransaction, as in violation of the DOJ HSR Act or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyLaw, each of Buyers, on the one hand, and Seller Buyer and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each Sellers shall cooperate in all respects with each other and shall use its their respective commercially reasonable best efforts to contest and resist any such action or proceeding Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by Transaction.
(e) Notwithstanding the foregoing or any other provision of this Agreement, in connection with efforts to obtain any clearance required under the HSR Act and any other applicable Laws for the consummation of the Transaction, in no event shall “commercially reasonable efforts” of either the Buyer or any Seller include entering into a consent decree or other commitment containing, as applicable, the Buyer’s or the Sellers’ agreement to hold separate or divest any of its or its Subsidiaries’ assets, facilities, properties or businesses, or agreeing to any limitations on its or its Subsidiaries’ conduct or actions or covenants affecting business practices, or otherwise agree to any structural or conduct remedy.
(f) Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 4.3 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1, so long as such party has, prior to such termination, complied, in all material respects, with its obligations under this Section 4.3.
(g) Each of Buyers Promptly, but in no event later than two Business Days following the Closing, the Sellers shall, and Seller and the Companies shall promptly advise the cause all other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation members of the transactions contemplated by this Agreement that causes such party Seller Group to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used file with the USDA a written notification to the Director of the USDA of the change in this Agreementownership of licensure under PACA and obtain approval from the Director of the change in trade name in accordance with 7 C.F.R. § 46.13 and (ii) cancel all applicable registrations with the FDA as described in 21 C.F.R. §§ 1.234, 1.235 to enable the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating Buyer to antitrust matters, insurance, or regulating competitionsubmit new facility registrations as described in 21 C.F.R. § 1.231.
Appears in 1 contract
Samples: Asset Purchase Agreement
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 Common Stock to be issued to PFC stockholders in connection with the Merger, the parties hereto shall cooperate in the preparation and filing by HUBCO with the SEC of a Registration Statement including 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 PFC and HUBCO to the terms PFC shareholders together with any and conditions of this Agreementall amendments or supplements thereto, each party will use its reasonable best efforts being herein referred to take, or cause as the "Proxy Statement-Prospectus" and the various documents to be taken, all actions, filed by HUBCO under the 1933 Act with the SEC to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate register the transactions contemplated by this AgreementHUBCO Common Stock for sale, including preparing and filing the Proxy Statement-Prospectus, are referred to herein as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement"Registration Statement").
(b) Each of Buyers HUBCO shall furnish PFC with such information concerning HUBCO and Seller shallits Subsidiaries (including, upon requestwithout limitation, furnish 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 PFC if at any time prior to the other all Stockholders Meeting, any information concerning itself (or provided by HUBCO in the case of SellerProxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide PFC with the information needed to correct such inaccuracy or omission. HUBCO shall furnish PFC with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, the Companies), insofar as it relates to HUBCO and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection to comply with any statement, filing, notice or application made by or on behalf of Buyers, Seller, Section 5.6(a) after the Companies, or any of their respective Subsidiaries mailing thereof to any Governmental Entity in connection with the transactions contemplated by this AgreementPFC shareholders.
(c) In furtherance and not PFC shall furnish HUBCO with such information concerning PFC as is necessary in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 order to cause the expiration Proxy Statement-Prospectus, insofar as it relates to PFC, to comply with Section 5.6(a) hereof. PFC agrees promptly to advise HUBCO if at any time prior to the Stockholders Meeting, any information provided by PFC in the Proxy Statement-Prospectus becomes incorrect or termination of incomplete in any material respect and to provide HUBCO with the applicable waiting periodsinformation needed to correct such inaccuracy or omission. PFC shall furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, or receipt of required authorizationsinsofar as it relates to PFC, as applicable, under to comply with Section 5.6(a) after the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts mailing thereof to obtain early termination of the waiting period under the HSR ActPFC shareholders.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, HUBCO shall as promptly as practicable make such filings as are necessary in connection with the efforts referenced in Section 5.7(c) to obtain offering of the HUBCO Common Stock with applicable state securities agencies and shall use all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects qualify the offering of such stock under applicable state securities laws at the earliest practicable date. PFC shall promptly furnish HUBCO with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject such information regarding PFC shareholders as HUBCO requires to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by enable it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject FNB agrees to prepare and file, as soon as practicable (but in any case, within sixty (60) days of the terms and conditions date of this Agreement), each party will use the Registration Statement with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Joint Proxy Statement and prospectus and other proxy solicitation materials of MBI and FNB constituting a part thereof and all related documents. MBI shall prepare and furnish to FNB such information relating to it and its reasonable best efforts Subsidiaries, directors, officers and shareholders as may be reasonably required in connection with the above referenced documents based on its knowledge of and access to takethe information required for said documents. MBI and its legal, or cause financial and accounting advisors shall have the right to review in advance and approve, which approval shall not be takenunreasonably withheld, all actionssuch Registration Statement prior to its filing. MBI agrees to cooperate with FNB and FNB’s counsel and accountants in requesting and obtaining appropriate opinions, consents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Joint Proxy Statement. As long as MBI has cooperated as described above, FNB agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Joint Proxy Statement with the SEC as promptly as reasonably practicable. Each of MBI and FNB agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. FNB also agrees to effect use its reasonable best efforts to obtain all necessary filings, consents, waivers, approvals, authorizations, state securities law or “Blue Sky” permits or orders from all third parties and Governmental Entities, including all amendments approvals required to materials previously filed that are necessary to reflect changes in carry out the transactions this Agreement from contemplates. After the Initial AgreementSEC has declared the Registration Statement effective under the Securities Act, each of MBI and FNB shall promptly mail the Joint Proxy Statement to their respective shareholders, and the expenses in connection therewith shall be borne in accordance with Section 9.3(a).
(b) Each of Buyers MBI and Seller FNB agrees that none of the respective information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, upon requestat the time the Registration Statement and each amendment or supplement thereto, furnish if any, becomes effective under the Securities Act, 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 MBI and FNB agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Joint Proxy Statement and any amendment or supplement thereto shall at the dates of mailing to MBI’s shareholders and FNB’s shareholders, the MBI Shareholders Meeting and the FNB Shareholders Meeting 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, in the light of the circumstances under which such statements were made, not misleading. Each of MBI and FNB further agrees that if such party shall become aware prior to the other all Effective Time of any information concerning itself (or furnished by such party that would cause any of the statements in the case Registration Statement or the Joint Proxy Statement 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 an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of SellerMBI.
(c) FNB agrees to advise MBI, promptly after FNB receives notice thereof, of the Companies)time when the Registration Statement has become effective or any supplement or amendment has been filed, its Subsidiariesof the issuance of any stop order or the suspension of the qualification of FNB Common Stock for offering or sale in any jurisdiction, directorsof the initiation or, officers to the extent FNB is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and shareholders use their respective reasonable best efforts to promptly (but in any case, within sixty (60) days of the date of this Agreement) prepare and such other matters file all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as may be reasonably promptly as practicable all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, 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 Regulatory Agencies and Governmental Entities. MBI and FNB shall have the right to review in connection with any statementadvance, filingand, notice 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 MBI or application made by or on behalf of BuyersFNB, Selleras the case may be, the Companies, or and any of their respective Subsidiaries to Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) . 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other apprised of the status of matters relating to completion of the transactions this Agreement contemplates. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification FNB and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and MBI shall use their respective reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB or MBI to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Regulatory Agencies or Governmental Entities that would reasonably be likely to have a Material Adverse Effect on FNB, the Surviving Company or MBI, as the case may be, after giving effect to the Merger, after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, MBI agrees to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Regulatory Agencies and Governmental Entities, that prohibits, prevents may be necessary or restricts advisable to effect any mergers and/or consolidations of Subsidiaries of MBI and FNB following consummation of the Merger.
(e) Each of FNB and MBI shall, upon request, furnish to the other 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 Registration Statement or any other statement, filing, notice or application made by or on behalf of FNB, MBI or any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(gf) Each of Buyers FNB and Seller MBI shall promptly provide each other with any written communications received from any Regulatory Agency or Governmental Entity with respect to the transactions contemplated by this Agreement and the Companies shall will promptly advise the other upon receiving any oral communication with respect to the transactions contemplated by this Agreement from any Regulatory Agency or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayedcontemplates.
(hg) In furtherance MBI and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), FNB shall consult with each other before issuing any press release with respect to the consentsMerger or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other party, waiverswhich shall not be unreasonably withheld; provided, approvalshowever, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by Law or the rules or regulations of the SEC, the Federal Reserve Board, the FDIC, the OCC, the NYSE or NASDAQ. In addition, the Chief Executive Officers of MBI and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement FNB shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. MBI and FNB shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (FNB Corp/Fl/)
Regulatory Matters. (a) ANB shall promptly prepare and file the S-4 Registration Statement with the SEC after the date hereof. ANB shall use its commercially reasonable efforts to have the S-4 Registration Statement declared effective under the 1933 Act as promptly as practicable after such filing. Once the S-4 Registration Statement has been declared effective by the SEC, FCB shall mail the Proxy Statement/Prospectus to its stockholders simultaneously with delivery of notice of the meeting of stockholders called to approve the Merger. ANB 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 transaction provided for in this Agreement, and FCB shall furnish all information concerning FCB and the holders of FCB Common Stock as may be requested in connection with any such action. If at any time prior to the Effective Time of the Merger any event shall occur which should be set forth in an amendment of, or a supplement to, the Proxy Statement/Prospectus, FCB will promptly inform ANB and cooperate and assist ANB in preparing such amendment or supplement and mailing the same to the stockholders of FCB. Subject to the terms and conditions Section 10.1(k) of this Agreement, the FCB Board shall recommend that the holders of FCB Common Stock vote for and adopt the Merger provided for in the Proxy Statement/Prospectus and this Agreement.
(b) The Parties shall cooperate with each party will other and use its their commercially reasonable best efforts to take, or cause to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings and to do, or cause to be done, obtain as promptly as practicable all things necessary, proper Consents of all third parties and Regulatory Authorities which are necessary or advisable to consummate the transactions contemplated by provided for in this Agreement. ANB and FCB shall have the right to review in advance, including preparing 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 ANB or FCB, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Regulatory Authority in connection with the transactions provided for in this Agreement. In exercising the foregoing right, each of the Parties hereto shall act reasonably and as promptly as practicable practicable. The Parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingsPermits and Consents, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Regulatory Authorities necessary or advisable to materials previously filed that are necessary to reflect changes consummate the transactions provided for in this Agreement from Agreement, and each Party will keep the Initial other apprised of the status of matters relating to completion of the transactions provided for in this Agreement.
(bc) Each of Buyers ANB and Seller FCB shall, upon request, furnish to the each other all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders and such other matters as that may be reasonably necessary or advisable in connection with the Proxy Statement/Prospectus, the S-4 Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersANB, SellerFCB or any of their Subsidiaries to any Regulatory Authority in connection with the Merger and the other transactions provided for in this Agreement.
(d) ANB and FCB shall promptly furnish each other with copies of all applications, notices, petitions and filings with all Regulatory Authorities, and all written communications received by ANB or FCB, as the Companiescase may be, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoingSubsidiaries, each party hereto agrees to make Affiliates or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party associates from, or given delivered by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it foregoing to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity orRegulatory Authority, in connection with any proceeding by a private party, with any other person, and to respect of the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencestransactions provided for herein.
(e) In furtherance ANB will indemnify and hold harmless FCB and its officers, directors and employees from and against any and all actions, causes of actions, losses, damages, expenses or Liabilities to which any such entity, or any director, officer, employee or controlling person thereof, may become subject under applicable Laws (including the 1933 Act and the 1000 Xxx) and rules and regulations thereunder and will reimburse FCB, and any such director, officer, employee or controlling person for any legal or other expenses reasonably incurred in connection with investigating or defending any actions, whether or not resulting in limitation liability, insofar as such losses, damages, expenses, liabilities or actions arise out of the covenants or are based upon any untrue statement or alleged untrue statement of the parties a material fact contained in Sections 5.7(c) and 5.7(d)the Registration Statement, if Proxy Statement/Prospectus or any objections application, notice, petition, or filing with any Regulatory Authority or arise out of or are asserted with respect based upon the omission or alleged omission to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened state therein a material fact required to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) takestated therein, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid make the entry ofstatement therein not misleading, but only insofar as any such statement or to effect the dissolution of, any injunction, temporary restraining order or other order omission was made in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action reliance upon and in conformity with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only information furnished in the event that the Closing occurs. Notwithstanding anything to the contrary writing in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought connection therewith by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholeANB Company.
(f) Subject FCB will indemnify and hold harmless ANB and its officers, directors and employees from and against any and all actions, causes of actions, losses, damages, expenses or Liabilities to Section 5.7(e), in the event that which any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreementsuch entity, or any other agreement contemplated herebydirector, Seller officer, employee or controlling person thereof, may become subject under applicable Laws (including the 1933 Act and Buyers each shall cooperate in all respects with each other the 1000 Xxx) and use its respective reasonable best efforts to contest rules and resist regulations thereunder and will reimburse ANB, and any such action director, officer, employee or proceeding and to have vacated, lifted, reversed or overturned controlling person for any decree, judgment, injunction legal or other orderexpenses reasonably incurred in connection with investigating or defending any actions, whether temporaryor not resulting in liability, preliminary insofar as such losses, damages, expenses, liabilities or permanentactions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, that is Proxy Statement/Prospectus or any application, notice, petition, or filing with any Regulatory Authority or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in effect and that prohibitsorder to make the statement therein not misleading, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of but only insofar as any such approval may be materially delayed.
(h) In furtherance statement or omission was made in reliance upon and not in limitation of the covenants of the parties contained conformity with information furnished in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used writing in this Agreement, the term “Regulatory Laws” means any Law enacted connection therewith by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionFCB Company.
Appears in 1 contract
Regulatory Matters. (a) Subject DGI agrees to prepare the Registration Statement to be filed by it with the SEC in connection with the distribution of DGI Common Stock in the Merger, including the Proxy Statement and prospectus and other proxy solicitation materials of UNNF constituting a part thereof and all related documents. UNNF shall prepare and furnish to DFSC such information relating to it and its directors, officers and shareholders as DGI may reasonably require in connection with the above referenced documents based on its knowledge of and access to the terms information required for said documents, and conditions of this AgreementUNNF, each party will use and its reasonable best efforts legal, financial and accounting advisors, shall have the right to takereview in advance and approve, or cause which approval shall not be unreasonably withheld such Registration Statement prior to be takenits filing. UNNF agrees to cooperate reasonably with DGI and DGI’s counsel and accountants in requesting and obtaining appropriate opinions, all actionsconsents and letters from its financial advisor and independent auditor in connection with the Registration Statement and the Proxy Statement. As long as UNNF has cooperated as described above, DGI agrees to file, or cause to be filed, all documents the Registration Statement and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing Proxy Statement with the SEC as promptly as reasonably practicable. Each of UNNF and DGI agree to use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable all documentation after the filing thereof. After the Registration Statement is declared effective under the Securities Act, UNNF shall as promptly as reasonably practicable mail at its expense the Proxy Statement to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreementits shareholders.
(b) Each of Buyers UNNF and Seller DGI agree that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Registration Statement shall, at the time the Registration Statement and each amendment or supplement thereto, if any, becomes effective under the Securities Act, 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 UNNF and DGI agree that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto shall 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 UNNF and DGI further agree that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause any of the statements in the Registration Statement or the Proxy Statement 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 parties thereof and an appropriate amendment or supplement describing such information shall be filed promptly with the SEC and, to the extent required by law, disseminated to the shareholders of UNNF.
(c) DGI agrees to advise UNNF, promptly after DGI receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of DGI Common Stock for offering or sale in any jurisdiction, of the initiation or, to the extent DGI is aware thereof, threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Registration Statement or for additional information. Prior to responding to any comments of the SEC or the staff of the SEC with respect to the Registration Statement or any amendment or supplement thereto, DGI shall provide UNNF a reasonable opportunity to comment on such document or response.
(d) The parties shall cooperate with each other and use their respective commercially reasonable 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, Bank Regulatory Authorities and Governmental Entities that are necessary or advisable to consummate the transactions this Agreement contemplates, 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 Bank Regulatory Authorities and Governmental Entities. UNNF and DFSC 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 UNNF, DFSC or DGI, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party, Bank Regulatory Authority or any Governmental Entity in connection with the transactions this Agreement contemplates. 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Bank Regulatory Authorities and Governmental Entities necessary or advisable to consummate the transactions this Agreement contemplates and each party will keep the other parties apprised of the status of matters relating to completion of the transactions this Agreement contemplates. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require any Donegal Entity to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of third parties, Bank Regulatory Authorities or Governmental Entities, that would reasonably be expected to have a material adverse effect on DFSC, Province or the Surviving Company after giving effect to the Merger, taken as a whole after the Effective Time (a “Materially Burdensome Regulatory Condition”), provided, however, in the event of the imposition of any Materially Burdensome Regulatory Condition, DFSC shall use its commercially reasonable efforts to obtain the removal of any such Materially Burdensome Regulatory Condition. In addition, UNNF agrees to cooperate and use its commercially reasonable efforts to assist DFSC in preparing and filing such petitions and filings, and in obtaining such permits, consents, approvals and authorizations of third parties, Bank Regulatory Authorities and Governmental Entities, that may be necessary or advisable to effect any mergers and/or consolidations of Subsidiaries of UNNF and DFSC following consummation of the Merger.
(e) Each of DFSC and UNNF shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers officers, shareholders and shareholders affiliates and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersDFSC, Seller, the Companies, UNNF or any of their respective Subsidiaries to any Bank Regulatory Authority or Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholecontemplates.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers DFSC and Seller and the Companies UNNF shall promptly advise the other upon receiving any communication from any Bank Regulatory Authority or Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement contemplates that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval as defined in Section 9.1(b) will not be obtained or that the receipt of any such approval may be materially delayed.
(hg) In furtherance UNNF and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), DFSC shall consult with each other before issuing any press release with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”)Merger, the costs paid to Bank Merger or this Agreement and shall not issue any third party with respect to Third Party Consents such press release or make any such public statements without the prior consent of the other, which shall not be borne 50% by Seller and 50% by Buyers. To the extent unreasonably withheld; provided, however, that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessarymay, proper or advisable to consummate without the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with prior consent of the other party’s participation, cooperation but after such consultation, to the extent practicable under the circumstances, issue such press release or make such public statements as may upon the advice of outside counsel be required by law or the rules or regulations of the SEC, the FDIC, the OCC, the OTS, NASDAQ, the Financial Industry Regulatory Authority or any other Bank Regulatory Authority or Government Entity. In addition, the Chief Executive Officers of UNNF and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement DFSC shall be borne 50% permitted to respond to appropriate questions about the Merger from the press. UNNF and DFSC shall cooperate to develop all public announcement materials and make appropriate management available at presentations related to the Merger and the Bank Merger as reasonably requested by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingthe other party.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Donegal Group Inc)
Regulatory Matters. (a) Subject MN shall own, control and retain primary legal responsibility for, and shall be responsible for funding, the preparation, filing and prosecution of all filings and regulatory applications required to the terms and conditions obtain Regulatory Approval of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or Product in the case ** CERTAIN INFORMATION (INDICATED BY ASTERISKS) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. MN Territory in the Field. MN may subcontract portions of Sellerthe Program; provided, the Companies)however, its Subsidiaries, directors, officers and shareholders and that such other matters as may subcontracted Third Party shall be reasonably necessary or advisable in connection subject to an agreement with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection MN consistent with the transactions contemplated by this Agreement.
(c) In furtherance and not confidentiality obligations in limitation accordance with Article 7 below. MPC shall transfer free of the foregoing, each party hereto agrees charge to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement MN as promptly soon as practicable after the date hereof (Effective Date any IND or other regulatory filings or approvals in the MN Territory relating to Compound or Product owned or Controlled by MPC and MPC shall allow MN or its designees free of charge the right to cross reference any IND, MAA or other regulatory filing in any event within 5 business days) the MPC Territory or drug master file if owned or Controlled by MPC and relating to makeCompound or Product. Upon MN’s reasonable request, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and MPC shall use commercially reasonable best efforts to obtain early termination consult and cooperate with MN in obtaining Regulatory Approval of Product in the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) MN Territory. MN shall pay to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to MPC (i) cooperate in all respects with each other in connection with any filing or submission the actual cost incurred to MPC by such consultation and in connection with any investigation or other inquirycooperation, including any proceeding initiated by a private party; but not limited to travel expense and (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) reasonable absence fee for MPC’s person dispatched to be given by it to, and consult with each other in advance of any meeting or conference with, separately agreed upon between the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesParties.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: License Agreement (Medicinova Inc)
Regulatory Matters. (a) ANB shall promptly prepare and file the S-4 Registration Statement with the SEC after the date hereof. IRBC and its counsel, accountants and advisors shall have the right to review and comment upon the Registration Statement, and revisions made in response to such comments, a reasonable period prior to filing. ANB shall use its commercially reasonable efforts to have the S-4 Registration Statement declared effective under the 1933 Act as promptly as practicable after such filing. Once the S-4 Registration Statement has been declared effective by the SEC, IRBC shall mail the Proxy Statement/Prospectus to its stockholders simultaneously with delivery of notice of the meeting of stockholders called to approve the Merger. ANB 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 transaction provided for in this Agreement, and IRBC shall furnish all information concerning IRBC and the holders of IRBC Common Stock as may be requested in connection with any such action. If at any time prior to the Effective Time of the Merger any event shall occur which should be set forth in an amendment of, or a supplement to, the Proxy Statement/Prospectus, IRBC will promptly inform ANB and cooperate and assist ANB in preparing such amendment or supplement and mailing the same to the stockholders of IRBC. Subject to the terms and conditions Section 10.1(k) of this Agreement, the IRBC Board shall recommend that the holders of IRBC Common Stock vote for and adopt the Merger provided for in the Proxy Statement/Prospectus and this Agreement.
(b) The Parties shall cooperate with each party will other and use its their commercially reasonable best efforts to take, or cause to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings and to do, or cause to be done, obtain as promptly as practicable all things necessary, proper Consents of all third parties and Regulatory Authorities which are necessary or advisable to consummate the transactions contemplated by provided for in this Agreement. ANB and IRBC shall have the right to review in advance, including preparing 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 ANB or IRBC, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Regulatory Authority in connection with the transactions provided for in this Agreement. In exercising the foregoing right, each of the Parties hereto shall act reasonably and as promptly as practicable practicable. The Parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingsPermits and Consents, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Regulatory Authorities necessary or advisable to materials previously filed that are necessary to reflect changes consummate the transactions provided for in this Agreement from Agreement, and each Party will keep the Initial other apprised of the status of matters relating to completion of the transactions provided for in this Agreement.
(bc) Each of Buyers ANB and Seller IRBC shall, upon request, furnish to the each other all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders stockholders and such other matters as that may be reasonably necessary or advisable in connection with the Proxy Statement/Prospectus, the S-4 Registration Statement or any other statement, filing, notice or application made by or on behalf of BuyersANB, SellerIRBC or any of their Subsidiaries to any Regulatory Authority in connection with the Merger and the other transactions provided for in this Agreement.
(d) ANB and IRBC shall promptly furnish each other with copies of all applications, notices, petitions and filings with all Regulatory Authorities, and all written communications received by ANB or IRBC, as the Companiescase may be, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoingSubsidiaries, each party hereto agrees to make Affiliates or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party associates from, or given delivered by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it foregoing to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity orRegulatory Authority, in connection with any proceeding by a private party, with any other person, and to respect of the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencestransactions provided for herein.
(e) In furtherance ANB will indemnify and hold harmless IRBC and its officers, directors and employees from and against any and all actions, causes of actions, losses, damages, expenses or Liabilities to which any such entity, or any director, officer, employee or controlling person thereof, may become subject under applicable Laws (including the 1933 Act and the 1934 Act) and rules and regulations thereunder and will reimburse IRXX, xxx any such director, officer, employee or controlling person for any legal or other expenses reasonably incurred in connection with investigating or defending any actions, whether or not resulting in limitation liability, insofar as such losses, damages, expenses, liabilities or actions arise out of the covenants or are based upon any untrue statement or alleged untrue statement of the parties a material fact contained in Sections 5.7(c) and 5.7(d)the Registration Statement, if Proxy Statement/Prospectus or any objections application, notice, petition, or filing with any Regulatory Authority or arise out of or are asserted with respect based upon the omission or alleged omission to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened state therein a material fact required to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) takestated therein, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid make the entry ofstatement therein not misleading, but only insofar as any such statement or to effect the dissolution of, any injunction, temporary restraining order or other order omission was made in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action reliance upon and in conformity with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only information furnished in the event that the Closing occurs. Notwithstanding anything to the contrary writing in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought connection therewith by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholeANB Company.
(f) Subject IRBC will indemnify and hold harmless ANB and its officers, directors and employees from and against any and all actions, causes of actions, losses, damages, expenses or Liabilities to Section 5.7(e), in the event that which any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreementsuch entity, or any director, officer, employee or controlling person thereof, may become subject under applicable Laws (including the 1933 Act and the 1934 Act) and rules and regulations thereunder and will reimburse ANX, xxx xny such director, officer, employee or controlling person for any legal or other agreement contemplated herebyexpenses reasonably incurred in connection with investigating or defending any actions, Seller and Buyers each shall cooperate whether or not resulting in all respects liability, insofar as such losses, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Proxy Statement/Prospectus or any application, notice, petition, or filing with each other and use its respective reasonable best efforts any Regulatory Authority or arise out of or are based upon the omission or alleged omission to contest and resist state therein a material fact required to be stated therein, or necessary in order to make the statement therein not misleading, but only insofar as any such action statement or proceeding omission was made in reliance upon and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not conformity with information furnished in limitation of the covenants of the parties contained writing in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted connection therewith by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionIRBC Company.
Appears in 1 contract
Regulatory Matters. (a) Subject Liberty and PRISA shall promptly prepare, and PRISA shall as promptly as practicable file with the SEC the F-4 (in which the Proxy Statement will be included) and the 8-A12(b) which shall comply as to form, in all material respects, with the applicable provisions of the Securities Act and the Exchange Act and which F-4, 8-A12(b) and Proxy Statement shall be in form and substance reasonably satisfactory to Liberty and PRISA prior to filing. Each of Liberty and PRISA shall use their reasonable best efforts to have the F-4 and 8-A12(b) declared effective under the Securities Act and the Exchange Act, respectively, as promptly as practicable after such filing, and Liberty shall thereafter file and mail or deliver the Proxy Statement to its stockholders. PRISA shall also use its reasonable best efforts to ensure that the Depositary prepares and files with the SEC the F-6s in such form as complies, in all material respects, with the applicable provision of the Securities Act and which shall be in form and substance reasonably satisfactory to Liberty and PRISA prior to filing. PRISA shall use its reasonable best efforts to ensure the F-6s are declared effective under the Securities Act prior to the terms Exchange Effective Time. No amendment or supplement to the Proxy Statement or the Registration Statements will be made by Liberty or PRISA without the approval of the other party (such approval not to be unreasonably withheld or delayed). Liberty and conditions PRISA each will advise the other, promptly after they receive notice thereof, of this Agreementthe time when the Registration Statements have become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of PRISA ADSs issuable in connection with the Share Exchange for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statements or comments thereon and responses thereto or requests by the SEC for additional information.
(b) The information relating to PRISA and its Subsidiaries to be contained in the Proxy Statement, the F-4, either PRISA Prospectus and any supplements thereto and any circulars or documents issued to shareholders, employees or debenture holders of PRISA and the information relating to PRISA and its Subsidiaries that is provided by PRISA and its Representatives for inclusion in any other document filed with any other regulatory agency in connection herewith, shall not at (i) the time each party of the F-4 and 8-A12(b) is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Liberty, (iii) the time of the Liberty Stockholder Meeting, or (iv) the Exchange Effective Time contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (provided that the foregoing covenant is not made with respect to information provided by Liberty or its Representatives for inclusion in such documents). If, at any time prior to the Exchange Effective Time, any event or circumstance relating to PRISA or any of its Subsidiaries, or their respective officers or directors, should be discovered by PRISA which should be set forth in an amendment or a supplement to the F-4 or Proxy Statement, PRISA shall promptly inform Liberty, and the parties shall cooperate reasonably in connection with preparing and disseminating any such required amendment or supplement.
(c) The information relating to Liberty and its Affiliates that is provided by Liberty or its Representatives for inclusion in the Proxy Statement, the F-4, either PRISA Prospectus and any supplements thereto and any circulars or documents issued to shareholders, employees or debenture holders of PRISA or in any other document filed with any other regulatory agency in connection herewith, will not at (i) the time the F-4 is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Liberty, (iii) the time of the Liberty Stockholder Meeting, or (iv) the Exchange Effective Time contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (provided that the foregoing covenant is not made with respect to information provided by PRISA or its Representatives for inclusion in such documents). If, at any time prior to the Exchange Effective Time, any event or circumstance relating to Liberty, its officers, directors or affiliates, should be discovered by Liberty which should be set forth in an amendment or a supplement to the F-4 or Proxy Statement, Liberty shall promptly inform PRISA, and the parties shall cooperate reasonably in connection with preparing and disseminating any such required amendment or supplement.
(d) As soon as practicable, (i) the PRISA Board shall, with the reasonable assistance of Liberty, prepare reports (Informe del consejo de administracion) to be made available to the holders of PRISA Shares in accordance with applicable Law (the “Board Reports”) in connection with the PRISA Shareholder Meeting containing information required by the SCL and (ii) PRISA shall prepare and arrange to have registered with and verified by the CNMV (x) the PRISA In-Kind Prospectus which PRISA In-Kind Prospectus shall be in form and substance reasonably satisfactory to Liberty and (y) a prospectus (Folleto) to effectuate the increase in capital in cash in respect of the PRISA Rights Offer (the “PRISA Subscription Prospectus” and, together with the PRISA In-Kind Prospectus, the “PRISA Prospectuses”). PRISA will use its reasonable best efforts to take, or cause the PRISA Prospectuses to receive the required registrations with and verifications of the CNMV as soon as practicable after the date of this Agreement and to cause the definitive PRISA Prospectuses to be takenmade available to the holders of PRISA Shares in accordance with applicable Law as soon as reasonably practicable. PRISA will advise Liberty, promptly after it receives notice thereof, of the time when the PRISA Prospectuses have received the required registration with and verification of the CNMV or if any supplement or amendment has been registered with the CNMV (any such supplement or amendment to be in form and substance reasonably satisfactory to Liberty). Liberty shall cooperate with PRISA in the preparation of the PRISA Prospectuses and shall provide all actionsinformation concerning Liberty and the holders of Liberty Common Stock as may be reasonably requested in connection with the preparation and filing of the PRISA Prospectuses.
(e) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents and to do, or cause to be done, all things necessary, proper Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, including preparing and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Liberty and PRISA 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 PRISA or Liberty, as the case may be, and any of their respective Subsidiaries, that appears in any material filing made with, or material written materials submitted to, any PRISA Lender with respect to the Debt Restructuring, the CNMV or the SEC in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. In exercising the foregoing rights of review and consultation, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits approvals and authorizations of all Governmental Entities necessary or orders from all third parties and Governmental Entities, including all amendments advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and the Initial AgreementAncillary Agreements and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.
(bf) Each of Buyers Liberty and Seller PRISA shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration Statements, the Board Reports and the PRISA Prospectuses or any other statement, filing, notice or application made by or on behalf of BuyersLiberty, Seller, the Companies, PRISA or any of their respective Subsidiaries or Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this AgreementAncillary Agreements.
(g) Each of Buyers Liberty and Seller and the Companies PRISA shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement and the Ancillary Agreements that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval approval of such Governmental Entity will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance PRISA and not in limitation Liberty shall (i) promptly inform the other of any communication to or from any Governmental Entity regarding the transactions contemplated hereby except to the extent prohibited by applicable Law or such Governmental Entity, (ii) give the other prompt notice of the covenants commencement of the parties contained in Sections 5.7(a), (d), (e) any Action by or (f), before any Governmental Entity with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreementhereby, such party shall obtain acceptable alternative arrangements, with and (iii) keep the other party’s participation, cooperation and approval; provided, that reasonably informed as to the costs paid to status of any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingsuch Action.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Business Combination Agreement (Liberty Acquisition Holdings Corp.)
Regulatory Matters. (a) Subject Parent, Merger Sub and the Company shall cooperate in preparing, and the Company shall, as soon as practicable, file (after providing Parent and Merger Sub with a reasonable opportunity to review and comment thereon) preliminary proxy materials (including, without limitation, a Schedule 13E-3 filing, if required to be filed under the Exchange Act) relating to the terms Company Meeting (together with any amendments thereof or supplements thereto, the "Proxy Statement") with the SEC and conditions shall use its commercially reasonable efforts to respond to any comments of this Agreementthe SEC (after providing Parent and Merger Sub with 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 promptly 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 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 or the transactions contemplated hereby. The Company will cause the Proxy Statement (other than portions relating to Parent or 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 Proxy Statement and the solicitation of proxies for the Company Meeting (including any requirement to amend or supplement the Proxy Statement). Merger Sub and Parent shall cooperate with the Company in the preparation of the Proxy Statement. Parent and Merger Sub will cause those portions of the Proxy Statement 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 Proxy Statement. Without limiting the generality of the foregoing, each party shall furnish to the other such 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. Each of the Company, Parent and Merger Sub 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 the Proxy Statement and 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 fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any statement which, at the time and 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. 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, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement; provided, that no such amendment or supplement to the Proxy Statement will be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon.
(b) Subject to Section 6.01(a) hereof and without limiting its rights under Section 8.01(h) hereof, the Company shall include in the Proxy Statement the recommendation of the Company's Board of Directors that the stockholders of the Company adopt this Agreement.
(c) The parties hereto shall cooperate with each other and use its their commercially reasonable best efforts to take, or cause to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreementhereby, including preparing and filing as promptly as practicable to comply fully with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and such Governmental Entities; provided that Parent and Merger Sub shall not be obligated to agree to any Burdensome Condition (as defined below). Parent, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers Company and Seller Merger Sub shall, upon request, furnish to the extent practicable, consult each other on, in each case subject to applicable laws relating to the exchange of information, all the information concerning itself (relating to the Company, Merger Sub or in Parent, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to Subsidiaries, which appear 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.
(c) hereby. In furtherance and not in limitation exercising the foregoing right, each of the foregoing, parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act other with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to makeobtaining of all permits, or cause to be madeconsents, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in of all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from and Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper Entities necessary or advisable to consummate the transactions contemplated by hereby and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby. For purposes of this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” "Burdensome Condition" means any Law enacted by any Governmental Entity relating conditions, restrictions or requirements which the Board of Directors of Parent reasonably determines would, individually or in the aggregate, (a) reduce the benefits of the Merger to antitrust matterssuch a degree that Parent would not have entered into this Agreement had such conditions, insurancerestrictions or requirements been known at the date hereof or (b) have, or regulating competitionwould reasonably be expected to have, a material and adverse effect on the Surviving Corporation following the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (BNP Paribas)
Regulatory Matters. (a) Subject In connection with the solicitation of approval of the Merger by the shareholders of Eastern, Eastern will prepare and file with the SEC, subject to ProAssurance’s review and comment, the preliminary Proxy Statement (which shall comply as to form, in all material respects, with the provisions of Regulation 14A of the Exchange Act and other applicable laws). ProAssurance and Eastern will use all reasonable efforts to respond to the terms comments of the SEC staff with respect to the Proxy Statement. As soon as practicable after SEC comments, if any, on the preliminary Proxy Statement are resolved, Eastern shall mail or deliver the definitive Proxy Statement to its shareholders in accordance with Regulation 14A under the Exchange Act. The information provided and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be takenprovided by ProAssurance and Eastern for use in the Proxy Statement will not, on such date and on the date on which approval of the Merger by the shareholders of Eastern is obtained, contain any untrue statement of material fact or omit to state any material fact required to be stated in this Agreement or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Each of ProAssurance and Eastern agree promptly to correct any such information provided by it for use in the Proxy Statement which shall have become false or misleading in any material respect and to take all actionssteps necessary to file with the SEC and have cleared by the SEC any amendment or supplement to the Proxy Statement so as to correct the same and to cause the Proxy Statement as corrected to be distributed to the shareholders of Eastern to the extent required by applicable law. To the extent that any disclosure regarding the tax consequences of the Merger is required with respect the Proxy Statement, Eastern will be responsible for any tax opinion in support of the disclosure of the material tax consequences.
(b) To the extent applicable, ProAssurance shall prepare and file with all necessary Governmental Authorities (i) a Notice on Form A and related documents and (ii) the preacquisition notification and report forms and related material on Form E in connection with the Merger.
(c) Pursuant to the HSR Act, ProAssurance and Eastern will promptly prepare and file, or cause to be filed, the HSR Act Report with the Pre-Merger Notification Agencies in respect of the transactions contemplated by this Agreement, which filing shall comply as to form with all documents requirements applicable thereto and all of the data and information reported therein shall be accurate and complete in all material respects. Each of ProAssurance and Eastern will promptly comply with all requests, if any, of the Pre-Merger Notification Agencies for additional information or documentation in connection with the HSR Act Report forms filed by or on behalf of each of such parties pursuant to dothe HSR Act, and all such additional information or documentation shall comply as to form with all requirements applicable thereto and shall be accurate and complete in all material respects.
(d) Each party shall provide to the other, (i) promptly after filing thereof, copies of all statements, applications, correspondence or forms filed by such party prior to the Closing Date with the SEC, the Pre-Merger Notification Agencies, the Insurance Regulators and any other Governmental Authority in connection with the transactions contemplated by this Agreement and (ii) promptly after delivery to, or cause to be donereceipt from, such regulatory authorities, all things necessarywritten communications, proper letters, reports or other documents relating to the transactions contemplated by this Agreement.
(e) The parties hereto shall cooperate with each other and use commercially reasonable 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 Authorities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Authorities. ProAssurance and Eastern 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 ProAssurance or Eastern, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Authority in connection with the transactions contemplated by this Agreement. The cooperation and coordination of each party required under this Section 6.1 shall include giving timely public notice of any public hearings regarding the transactions contemplated by this Agreement and having its representatives attend and testify at such public hearings. In addition, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Authorities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bf) Each of Buyers ProAssurance and Seller Eastern shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and stockholders/shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of BuyersProAssurance, Seller, the Companies, Eastern or any of their respective Subsidiaries to any Governmental Entity Authority in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller Merger and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers ProAssurance and Seller and the Companies Eastern shall promptly advise the each other upon receiving any communication from any Governmental Entity the Authority whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Eastern Insurance Holdings, Inc.)
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, Timberland shall promptly prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared jointly by Timberland and South Sound Bank, will be included. Each of Timberland and South Sound Bank shall use its commercially reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Form S-4 or any related matters. Each of South Sound Bank and Timberland shall use its commercially reasonable best efforts to have the Form 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 issue the Timberland Common Stock in connection with the Merger. Upon the Form S-4 being declared effective, South Sound Bank shall thereafter mail or deliver the Proxy Statement to its shareholders. Timberland 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 Merger, and South Sound Bank shall furnish all information concerning South Sound Bank and the holders of South Sound Bank Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to South Sound Bank or Timberland, or any of their respective affiliates, directors or officers, should be discovered by South Sound Bank or Timberland that should be set forth in an amendment or supplement to either the Form S-4 or the 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 SEC and, to the extent required by applicable law, disseminated to South Sound Bank's shareholders.
(b) In addition to their obligations pursuant to Section 6.1(a), South Sound Bank and Timberland shall make all necessary filings with respect to the Merger and the issuance of Timberland Common Stock in connection therewith under the Securities Act, the Exchange Act and applicable foreign or state securities or "Blue Sky" laws and regulations promulgated thereunder and provide each other with copies of any such filings. Timberland and South Sound Bank shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of Timberland Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form 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 Proxy Statement or the Form S-4 shall be filed without the approval of each of South Sound Bank and Timberland, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will Timberland, Timberland Bank and South Sound Bank shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with each other party in doing, all things necessary, proper or advisable to consummate and make effective, in the transactions contemplated by most expeditious manner practicable, the Merger, including (i) the satisfaction of the conditions precedent to the obligations of South Sound Bank (in the case of Timberland and Timberland Bank ) or Timberland and Timberland Bank (in the case of South Sound Bank) 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 antitrust laws, waivers, consents, authorizations, permits, orders and approvals from, or any exemption by, any Governmental Entities and the taking of all commercially reasonable steps as may be necessary to obtain expirations or terminations of waiting periods under antitrust laws, an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, and (iv) the execution and delivery of any additional instruments necessary to consummate the 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, including preparing all necessary documentation to effect all applications, notices, petitions and filing filings, to obtain as promptly as practicable all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes consummate the Merger, and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such third parties, Regulatory Agencies or other Governmental Entities. In furtherance (but not in this Agreement from limitation) of the Initial Agreementforegoing, Timberland and Timberland Bank shall use commercially reasonable best efforts to file any required applications, notices or other filings with the DFI and FDIC within forty-five (45) days after the date hereof. South Sound Bank, on the one hand, and Timberland and Timberland Bank, on the other hand, 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 South Sound Bank or Timberland and Timberland Bank, as the case may be, that appear in any filing made with, or written materials submitted to, any third party, Regulatory Agency or other Governmental Entity in connection with the Merger. 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 obtaining of all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and other Governmental Entities necessary or advisable to consummate the Merger and each party will keep the other apprised of the status of matters relating to completion of the Merger.
(bd) Each of Buyers Timberland and Seller Timberland Bank, on the one hand, and South Sound Bank, on the other hand, shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiariesaffiliates, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersTimberland, Seller, the Companies, Timberland Bank or any of their respective Subsidiaries South Sound Bank to any Regulatory Agency or other Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesMerger.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers Timberland Bank and Seller and the Companies South Sound Bank 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 transactions contemplated by this Agreement Merger that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.1(e)).
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Webster and Maritime Bank (as to information to be included therein xxxxxxxing to Maritime Bank) shall promptly cause to be prepared and filed with the SEC the Registration Statement for the purpose of registering the Webster Common Stock to be issued in the Merger. Webster and Maritime Xxxx xxall use its their reasonable best efforts to takehxxx xxx Registration Statement declared effective by the SEC as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Maritime Bank is discovered which should be set forth in an amendment of, or a supplement to, the Registration Statement (including, without limitation, any change in the Fairness Opinion), Maritime Bank shall promptly inform Webster and shall furnish Webster with all necessary information relatxxx xx such event whereupox Xxxxxer shall promptly cause an appropriate amendment to the Registratxxx Xxatement to be takenfiled with the SEC. Upon the effectiveness of such amendment, Maritime Bank (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. Webster shall also use reasonable efforts to obtain all necessary staxx xxxurities law or "Blue Sky" permits and approvals required to carry out the transactions contemplated by this Agreement and the Bank Merger Agreement and Maritime Bank shall furnish all information concerning Maritime Bank and the holders of Maritime Bank 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 prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Merger). Maritime Bank and Webster shall have the right to review in advance, and to the extent xxxxxxcable each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to Maritime Bank or Webster and Webster Bank, as the case may be, which appears in any fxxxxx xade wxxx, xx written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller Maritime Bank shall, upon request, furnish to the other Webster with all information concerning itself (or in the case of Seller, the Companies), Maritime Bank and its Subsidiaries, directorsxxxxxtors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement, the Proxy Statement/Prospectus or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, Webster or any of their respective Subsidiaries Webster Bank to any Governmental Entity in connection with the xxx Xxxger xx xxx other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Webster and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Maritime Bank shall promptly advise the each other upon receiving recxxxxxx any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject Target and Parent shall promptly prepare and Parent shall file with the SEC the Proxy Statement/Prospectus and Parent shall promptly prepare and file with the SEC the Form S-4, in which the Proxy Statement/Prospectus will be included as a prospectus. Each of Target and Parent shall use their reasonable best efforts in consultation with their respective legal counsel to have the terms Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of this Agreement, each party will Target shall thereafter promptly mail or deliver the Proxy Statement/Prospectus to its shareholders. Parent shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and Target shall furnish all information concerning Target and the holders of Target Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to or after the Effective Time any information relating to any of the parties, or cause their respective affiliates, officers or directors, should be discovered by a party, which information should be set forth in an amendment or supplement to be takenany of the Form S-4 or the Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated or made available on the SEC’s XXXXX database to be filedthe shareholders of Parent and mailed or delivered to the shareholders of Target.
(b) 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 documents permits, consents, waivers, approvals and to do, authorizations of all third parties and Governmental Entities or cause to be done, all things necessary, proper Regulatory Agencies which are reasonably necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including, including preparing without limitation, the Merger), and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvalsapprovals and authorizations of all such Governmental Entities, authorizationsRegulatory Agencies and third parties; provided, permits however, that in no event shall Parent or Acquiror be required to agree to any prohibition, limitation, or other requirement which (i) would prohibit or materially limit the ownership or operation by Target, or by Parent or Acquiror or any of their Subsidiaries, of all or any material portion of the business or assets of Target or Parent or Acquiror or any of their Subsidiaries, (ii) compel Parent or Acquiror or any of their Subsidiaries to dispose of all or any material portion of the business or assets of Target or of Parent or Acquiror or any of their Subsidiaries or continue any portion of any Target Regulatory Agreement against Parent or Acquiror or any of their Subsidiaries after the Merger or (iii) would reasonably be expected to have a Material Adverse Effect on Parent after giving effect to the Merger (together, the “Burdensome Conditions”); provided, further, however, that (1) any prohibition, limitation or other requirement imposed by a Governmental Entity or Regulatory Agency which is customarily imposed in published orders from or approvals for transactions such as the Merger shall not be deemed to be a Burdensome Condition and (2) prior to declaring a Burdensome Condition and electing not to consummate the transactions contemplated hereby as a result thereof, Parent and Acquiror shall negotiate in good faith with the relevant Governmental Entity or Regulatory Agency to seek a commercially reasonable modification to the prohibition, limitation or other requirement to reduce the burdensome nature thereof such that the prohibition, limitation or other requirement no longer constitutes a Burdensome Condition. Without limiting the generality of the foregoing, as soon as practicable and in no event later than thirty (30) days after the date of this Agreement, Parent and Acquiror shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals. The parties hereto agree that they will consult with each other party hereto with respect to the obtaining of all permits, consents, waivers, approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities or Regulatory Agencies necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial others apprised of the status of matters relating to completion of the transactions contemplated herein. Parent and Acquiror, on the one hand, and Target, on the other hand, will furnish each other and each other’s counsel with all information concerning themselves, their Subsidiaries, directors, trustees, officers and shareholders and such other matters as reasonably may be necessary or advisable in connection with the Proxy Statement/Prospectus and any application, petition or other statement or application made by or on behalf of Parent or Acquiror or Target to any Governmental Entity or Regulatory Agency in connection with the transactions contemplated by this Agreement. Parent and Acquiror, on the one hand, and Target, on the other hand, 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 Parent and Acquiror or Target, 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 or Regulatory Agency 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. Each party will provide the other with copies of any applications, notices, petitions or filings, and all correspondence relating thereto, prior to filing, other than any portions of material filed in connection therewith that contain information filed under a claim of confidentiality (except for the Interagency Bank Merger Act Application) and, in each case, subject to applicable laws relating to the exchange of information.
(bc) Each of Buyers Target, on the one hand, and Seller Acquiror or Parent, on the other hand, shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement/Prospectus, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersTarget, SellerParent, the Companies, Acquiror or any of their respective Subsidiaries to any Governmental Entity or Regulatory Agency in connection with the Merger and the other transactions contemplated by this Agreement.
. Each of Parent and Acquiror, on the one hand, and Target, on the other hand, agrees, as to itself and its Subsidiaries, (ci) In furtherance and not in limitation that none of the foregoing, each party hereto agrees to make information supplied or cause to be made an appropriate filing of a Notification supplied by it for inclusion or incorporation by reference in the Form S-4 will, at the time the Form S-4 and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, each amendment or cause to be made, the filings and authorizationssupplement thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required under to be stated therein or necessary to make the statements therein not misleading and (ii) that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement/Prospectus and any other Regulatory Laws as promptly as reasonably practicable after amendment or supplement thereto will, at the date hereof of mailing to shareholders and at the time of the Target Shareholders’ Meeting, contain any untrue statement of a material fact or omit to supply as state any material fact required to be stated therein or necessary to make any statement therein, in light of the circumstances under which such statement was made, not misleading. Each of Parent and Acquiror, on the one hand, and Target, on the other hand, further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the Form S-4 or the Proxy Statement/Prospectus 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 as reasonably practicable any additional information and documentary material that may be requested pursuant to inform the HSR Act other party thereof and to take appropriate steps to correct the Form S-4 or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR ActProxy Statement/Prospectus.
(d) Each of BuyersTarget, on the one hand, and Seller and the CompaniesParent or Acquiror, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the or Regulatory Agency whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or obtained, that the receipt of any such approval may will be materially delayeddelayed or that a Burdensome Condition might be imposed on any such Requisite Regulatory Approval.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) Parent and Acquiror, on the one hand, and Target, on the other hand, shall promptly furnish each other with copies of written communications received by Parent, Acquiror or (f)Target, with respect to as the consentscase may be, waiversor delivered by either of Parent, approvalsAcquiror or Target, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with Governmental Entity or Regulatory Agency in respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate of the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Xxxxxxx and Village (as to information to be included therein pertaining to Village) shall promptly cause to be prepared and filed with the SEC the Registration Statement. Xxxxxxx and Village shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Village is discovered which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement (including, without limitation, any change in the Fairness Opinion), Village shall promptly inform Xxxxxxx and shall furnish Xxxxxxx with all necessary information relating to such event whereupon Xxxxxxx shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, Village (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. Xxxxxxx shall also use 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 Bank Merger Agreement and Village shall furnish all information concerning Village and the holders of Village 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 prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Bank Merger). Village and Xxxxxxx 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 Village or Xxxxxxx, as the case may be, 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; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller Village shall, upon request, furnish to the other Xxxxxxx with all information concerning itself (or in the case of Seller, the Companies), Village and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries Xxxxxxx to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Xxxxxxx and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Village shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to the terms Liberty and conditions of this AgreementPRISA shall promptly prepare, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing PRISA shall as promptly as practicable file with the SEC an amendment to the F-4 (in which the Proxy Statement will be included) and the 8-A12(b)s which shall comply as to form, in all documentation material respects, with the applicable provisions of the Securities Act and the Exchange Act and which amendment to effect all necessary filingsthe F-4, consents, waivers, approvals, authorizations, permits or orders from all third parties 8-A12(b)s and Governmental Entities, including all amendments Proxy Statement shall be in form and substance reasonably satisfactory to materials previously filed that are necessary Liberty and PRISA prior to reflect changes in this Agreement from the Initial Agreement.
(b) filing. Each of Buyers Liberty and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, PRISA shall use their reasonable best efforts to have the F-4 and 8-A12(b)s declared effective under the Securities Act and the Exchange Act, respectively, as promptly as practicable after such filing, and Liberty shall thereafter file and mail or deliver the Proxy Statement to its stockholders. PRISA shall also use its reasonable best efforts to ensure that the Depositary prepares and files with the SEC the F-6s in such form as complies, in all material respects, with the applicable provision of the Securities Act and which shall be in form and substance reasonably satisfactory to Liberty and PRISA prior to filing. PRISA shall use its reasonable best efforts to ensure the F-6s are declared effective under the Securities Act prior to the Exchange Effective Time. No amendment or supplement to the Proxy Statement or the Registration Statements will be made by Liberty or PRISA without the approval of the other party (x) take, or cause such approval not to be takenunreasonably withheld or delayed). Liberty and PRISA each will advise the other, all other actions and (y) dopromptly after they receive notice thereof, of the time when the Registration Statements have become effective or cause to be doneany supplement or amendment has been filed, all other things necessary, proper or advisable to consummate and make effective of the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities issuance of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated herebystop order, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any suspension of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent qualification of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise PRISA ADSs issuable in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit Share Exchange for offering or limit sale in any material respect the ownership jurisdiction, or operation of any request by the Companies, their Subsidiaries, either Buyer or any of their Affiliates SEC for amendment of the business Proxy Statement or assets of any of them, the Registration Statements or to compel comments thereon and responses thereto or requests by the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholeSEC for additional information.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Business Combination Agreement
Regulatory Matters. (a) Subject Parent shall prepare and file with the SEC a registration statement under the Securities Act relating to the terms Parent Common Stock to be received by the Stockholders of the Company in exchange for the Company Common Stock (the "Registration Statement"). Parent shall prepare and conditions of this Agreement, each party will file with the SEC a preliminary Proxy Statement. Parent shall use its reasonable best efforts to takeefforts, or cause to be taken, all actionsand the Company shall cooperate with Parent, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate have the transactions contemplated Registration Statement declared effective by this Agreement, including preparing and filing the SEC as promptly as practicable all documentation and to effect keep the Registration Statement effective as long as is necessary to consummate the Merger. Parent shall, as promptly as practicable, provide copies of any written comments received from the SEC with respect to the Registration Statement to the Company and advise the Company of any verbal comments with respect to the Registration Statement received from the SEC. Parent shall use reasonable efforts to obtain all necessary filingsstate securities laws or "blue sky" permits, consents, waivers, approvals, authorizations, permits or orders from all third parties approvals and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity registrations in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation issuance of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form Parent Common Stock pursuant to the HSR Act Merger. If at any time prior to the Effective Time, any event with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer Parent or any of its Subsidiaries from effectively controlling in any material or with respect the business to other information supplied by Parent or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or for inclusion in the aggregate reasonably be expected to significantly and adversely affect the benefitsRegistration Statement, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of occur which is required for consummation to be described in an amendment of, or a supplement to, the Registration Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that Company. Parent shall advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any requisite Regulatory Approval will not be obtained supplement or that amendment thereto has been filed, the receipt issuance of any such approval may be materially delayed.
(h) In furtherance and not in limitation stop order, the denial or suspension of the covenants qualification of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect Parent Common Stock issuable pursuant to the consents, waivers, approvals, authorizations Merger for offering or sale in any jurisdiction or any request by the SEC for any amendment or supplement to the Registration Statement or comments thereon and permits sought responses thereto or requests by the SEC for additional information. None of the information supplied or to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”)supplied by the Company for inclusion or incorporation by reference in the Registration Statement will, at the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To time the extent that a party seeking a Third Party Consent Registration Statement is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, filed with the other party’s participationSEC and at the time it becomes effective under the Securities Act or at the Effective Time, cooperation and approval; provided, that the costs paid to contain any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.untrue statement of
Appears in 1 contract
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, HomeTrust shall prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared jointly by HomeTrust and TriSummit, will be included. Each of HomeTrust and TriSummit shall use its commercially reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Form S-4 or any related matters. Each of TriSummit and HomeTrust shall use its commercially reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after 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 Form S-4 being declared effective, TriSummit shall thereafter mail or deliver the Proxy Statement to the holders of TriSummit Common Stock and TriSummit Series A Preferred Stock. HomeTrust 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, and TriSummit shall furnish all information concerning TriSummit and the holders of TriSummit Common Stock and TriSummit Series A Preferred Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to TriSummit or HomeTrust, or any of their respective Subsidiaries, affiliates, directors or officers, is discovered by TriSummit or HomeTrust that should be set forth in an amendment or supplement to either the Form S-4 or the 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 with knowledge of such event or that discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such event or information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the holders of TriSummit Common Stock and TriSummit Series A Preferred Stock.
(b) In addition to their obligations pursuant to Section 6.1(a), TriSummit and HomeTrust shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide each other with copies of any such filings. HomeTrust and TriSummit shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of HomeTrust Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form S-4, comments thereon from the SEC’s staff and each party’s responses thereto or requests of the SEC or its staff for additional information. No amendment or supplement to the Proxy Statement or the Form S-4 shall be filed without the approval of each of TriSummit and HomeTrust, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will HomeTrust and TriSummit shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner reasonably practicable, the transactions contemplated by this Agreement, including preparing (i) the satisfaction of the conditions precedent to the obligations of TriSummit (in the case of HomeTrust) or HomeTrust (in the case of TriSummit) to consummate the Merger, (ii) the obtaining of all necessary consents or waivers from third parties, (iii) the obtaining of all waivers, consents, authorizations, permits, orders and approvals from, or any exemption by, any Governmental Entities, (iv) the filing or provision of all notices to Regulatory Agencies and customers, and the posting of written notices at branch locations relating to branch closures, and (v) the execution and delivery of any additional instruments necessary to consummate the Merger or 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 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 necessary to obtain as promptly as practicable all documentation to effect all necessary filingspermits, consents, waiversapprovals, waivers 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, authorizationswaivers and authorizations of all such third parties, permits Regulatory Agencies or orders from other Governmental Entities. In furtherance (but not in limitation) of the foregoing, HomeTrust shall, and shall cause HomeTrust Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the Federal Reserve Board, the TDFI, the Commissioner, and the FDIC, if applicable, within thirty (30) days after the date hereof. TriSummit and HomeTrust 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 TriSummit or HomeTrust, as the case may be, and any of their respective Subsidiaries, affiliates, directors, directors, employees, and shareholders, that appears in any filing made with, or written materials submitted to, any third party, Regulatory 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 reasonably practicable. The Parties shall consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties parties, Regulatory Agencies and other Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bd) Each of Buyers HomeTrust and Seller TriSummit shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersHomeTrust, Seller, the Companies, TriSummit or any of their respective Subsidiaries to any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, HomeTrust and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies TriSummit 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 transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competitionthat any such approval may contain an Unduly Burdensome Condition (as defined in Section 7.2(d)).
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 be issued to DFC shareholders in connection with the Merger, the parties hereto shall cooperate in the preparation and filing by HUBCO with the SEC of a Registration Statement including 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 DFC and HUBCO to the terms DFC shareholders together with any and conditions 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 DFC 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 DFC 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 DFC with the information needed to correct such inaccuracy or omission. HUBCO shall furnish DFC 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 DFC shareholders.
(c) DFC shall furnish HUBCO with such information concerning DFC as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to DFC, to comply with Section 5.6(a) hereof. DFC agrees promptly to advise HUBCO if at any time prior to the Shareholders' Meeting, any information provided by DFC 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. DFC shall furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to DFC and the Dime to comply with Section 5.6(a) after the mailing thereof to DFC shareholders.
(d) HUBCO shall as promptly as practicable make such filings as are necessary in connection with the offering of this Agreementthe 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. DFC shall promptly furnish HUBCO with such information regarding the DFC shareholders as HUBCO requires to enable it to determine what filings are required hereunder. DFC authorizes HUBCO to utilize in such filings the information concerning DFC and the Dime provided to HUBCO in connection with, or contained in, the Proxy Statement-Prospectus. HUBCO shall furnish DFC's counsel with copies of all such filings and keep DFC advised of the status thereof. HUBCO and DFC shall as promptly as practicable file the Registration Statement containing the Proxy Statement-Prospectus with the SEC, and each party of HUBCO and DFC 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 exercise of Stock Options to be accepted for listing on the NASDAQ when issued.
(f) The parties hereto will cooperate with each other and use its their reasonable best efforts to take, or cause to be taken, prepare all actionsnecessary documentation, to file, or cause to be filed, effect all documents necessary filings and to doobtain all necessary permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper or advisable third parties and governmental bodies necessary to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicablepossible, including, without limitation, those required by the FDIC, the FRB, the Department and the DEP. In furtherance and not in limitation of Without limiting the foregoing, the parties shall request and shall use reasonable best business efforts to obtain early termination of file for approval or waiver by the waiting period under appropriate bank regulatory agencies within 45 days after the HSR Act.
(d) Each of Buyers, on date hereof. The parties shall each have the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party right to review in advance any communication (provided that the parties may redact references and shall do so promptly) all filings with, including all information relating to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if anyother, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction case may assert under any Law with respect to the transactions contemplated herebybe, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliatessubsidiaries, (D) would individually or which appears in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreementfiling made with, or written material submitted to, any other agreement contemplated hereby, Seller and Buyers each shall cooperate third party or governmental body in all respects connection with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall parties will promptly advise furnish each other with copies of written communications received by them or any of their respective subsidiaries from, or delivered by any of the other upon receiving any communication from foregoing to, any Governmental Entity the consent or approval of which is required for consummation in respect of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayedhereby.
(h) In furtherance DFC acknowledges that HUBCO is in or may be in the process of acquiring other banks and not financial institutions and that in limitation connection with such acquisitions, information concerning DFC may be required to be included in the registration statements, if any, for the sale of the covenants securities of the parties contained HUBCO or in Sections 5.7(a)SEC reports in connection with such acquisitions. DFC agrees to provide HUBCO with any information, (d)certificates, (e) documents or (f)other materials about DFC as are reasonably necessary to be included in such other SEC reports or registration statements, with respect including registration statements which may be filed by HUBCO prior to the Effective Time. DFC shall use its reasonable efforts to cause its attorneys and accountants to provide HUBCO and any underwriters for HUBCO with any consents, waiverscomfort letters, approvalsopinion letters, authorizations reports or information which are necessary to complete the registration statements and permits sought to applications for any such acquisition or issuance of securities. HUBCO shall reimburse DFC for reasonable expenses thus incurred by DFC should this transaction be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to terminated for any third party with respect to Third Party Consents reason. HUBCO shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, not file with the other party’s participationSEC any registration statement or amendment thereto or supplement thereof containing information regarding DFC unless DFC shall have consented in writing to such filing, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement which consent shall not be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingunreasonably delayed or withheld.
(i) As used in Between the date of this AgreementAgreement and the Effective Time, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating DFC shall cooperate with HUBCO to antitrust reasonably conform DFC's policies and procedures regarding applicable regulatory matters, insurance, or regulating competitionto those of HUBCO as HUBCO may reasonably identify to DFC from time to time.
Appears in 1 contract
Samples: Merger Agreement (Hubco Inc)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Sterling and Northern Empire shall promptly cause the Registration Statement to be prepared and filed with the SEC. Sterling and Northern Empire shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing thereof. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Northern Empire or Sterling is discovered by Northern Empire or Sterling, as applicable, which should be set forth in an amendment of, or a supplement to, the Registration Statement, the discovering party shall promptly inform the other party with all relevant information relating to such event, whereupon Sterling shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of Northern Empire and Sterling (if prior to the meeting of the shareholders of Northern Empire pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to the shareholders entitled to vote at such meeting. Sterling shall also use 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 Institution Merger Agreement, and Northern Empire shall furnish all information concerning Northern Empire and the holders of Northern Empire 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Institution Merger). Northern Empire and Sterling 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 Northern Empire or Sterling, as the case may be, 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. In addition, including preparing counsel to Northern Empire shall be provided with a draft of all regulatory applications prior to their submission and filing shall have a period of five business days within which to review and comment on such applications. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated herein.
(bc) Each of Buyers Northern Empire and Seller shall, upon request, Sterling shall each furnish to the other with all information concerning itself (or in the case of Seller, the Companies), each other and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement, the Proxy Statement/Prospectus or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, Sterling or any of their respective Subsidiaries Northern Empire to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Sterling and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Northern Empire shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Webster and DS Bancor (as to information to be included therein pertaining to DS Bancor) shall promptly cause to be prepared and filed with the SEC a registration statement of Webster on Form S-4, including the Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the Webster Common Stock to be issued xx xxx Merger (including the Webster Common Stock that may be isxxxx xxon exercise of the options referred to in Section 1.6 hereof), and for soliciting the approval of this Agreement and the Merger by the shareholders of DS Bancor and for soliciting the approval by the shareholders of Webster for the issuance of the Webster Common Stock to DS Bancor's shareholders as part of the Merger. Webster and DS Bancor shall use its reasonable their best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing. DS Bancor shall cooperate with Webster in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement concerning DS Bancor. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to DS Bancor is discovered by DS Bancor, which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, DS Bancor shall promptly so inform Webster, and shall furnish Webster with all necessary information relating to such event. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to Webster is discovered by Webster, xxxxx should be set forth xx xx amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, Webster shall promptly cause an xxxxxpriate amendment to the Registration Statement to be takenfiled with the SEC. Webster shall thereupon cause an axxxxxxxate amendment to the Registration Statement to be filed with the SEC. Upon the effectiveness of the amendment to the Registration Statement with the SEC, DS Bancor (if prior to the meeting of DS Bancor's shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to DS Bancor's shareholders entitled to vote at such meeting. Webster shall also use all 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 Bank Merger Agreement and DS Bancor shall furnish all information concerning DS Bancor and the holders of DS Bancor 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Bank Merger). DS Bancor and Webster 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 DS Bancor or Webster, as the case may be, which appear 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; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller DS Bancor shall, upon request, furnish to the other Webster with all information concerning itself (or in the case of Seller, the Companies), DS Bancor and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, Webster or any of their respective Subsidiaries Webster Bank to any Governmental Entity Goxxxxxxxtal Xxxxxx in connection with the Merger, the Bank Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Webster and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies DS Bancor shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject Target and Acquiror shall promptly prepare and file with the SEC the Joint Proxy Statement and Acquiror shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Target and Acquiror shall use their reasonable best efforts in consultation with their respective legal counsel to have the terms Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of this Agreement, each party will Target and Acquiror shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. Acquiror shall also use its reasonable best efforts to takeobtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and Target shall furnish all information concerning Target and the holders of Target Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to or after the Effective Time any information relating to either of the parties, or cause their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to be takenany of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, all actionsin light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to filethe extent required by law, rules or cause regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated or made available on the SEC’s EXXXX database to be filedthe shareholders of Acquiror and Target.
(b) 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 documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Target and Acquiror 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 Acquiror or Target, as the case may be, 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 transactions contemplated by this Agreement. In exercising the foregoing right, including preparing each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to completion of the transactions contemplated herein.
(bc) Each of Buyers Target and Seller Acquiror shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)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 Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersTarget, Seller, the Companies, Acquiror or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Target and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Acquiror shall promptly advise the other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory 26 Approval (as defined below) will not be obtained or obtained, that the receipt of any such approval may will be materially delayeddelayed or that non-customary or burdensome conditions or post-closing requirements might be imposed on any such Required Regulatory Approval.
(he) In furtherance Acquiror and not in limitation Target shall promptly furnish each other with copies of written communications received by Acquiror and Target, as the case may be, or any of their respective Subsidiaries from, or delivered by any of the covenants foregoing to, any Governmental Entity in respect of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of SellerS ection 6.5, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
Company will (c1) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing all filings and submissions required to be made by the Company or its Subsidiaries under any applicable Laws for the consummation of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement set forth on S chedule 6.4, including filings or submissions related to Product Registrations and a General Information Notice for each Acquired Leased Real Property in New Jersey subject to ISRA, (2) reasonably cooperate with Purchaser in exchanging such information and providing reasonable assistance as Purchaser may reasonably request in connection with any filings made by the Purchaser Group pursuant to Section 6.4(b), and (3) (A) supply promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested in connection with the filings made pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration 6.4(a) or termination of the applicable waiting periodsSection 6.4(b), or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall (B) use reasonable best efforts to take all actions necessary to obtain early termination all required clearances in connection with such filings. Prior to reasonably acceptable to Purchaser to commence performance of a Preliminary Assessment (as defined in ISRA) for each Acquired Leased Real Property in New Jersey for which a General Information Notice was submitted. The Company and Purchaser shall cooperate in good faith regarding the performance of the waiting period Preliminary Assessments, including the Company responding as promptly as reasonably practicable to any inquiries from Purchaser about the status of the Preliminary Assessments. Purchaser shall have the reasonable right to review and comment on the Preliminary Assessments, and the Company shall request that the LSRP consider in good faith any reasonable comments on the Preliminary Assessments received from Purchaser. At Closing, the Company shall end its engagement of the LSRP, at which time Purchaser shall directly engage the LSRP in connection with its assumption of responsibility for ISRA under Section 6.4(b)(ii). In the HSR Actevent the Preliminary Assessments have not been finalized at Closing, Purchaser shall be responsible, at its sole cost and expense, to complete the Preliminary Assessments.
(db) Each of BuyersSubject to S ection 6.5, on the one handPurchaser will, and Seller will cause its Affiliates and the CompaniesAdvisors to, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, make or cause to be taken, made all other actions filings and (y) do, or cause submissions required to be done, all other things necessary, proper or advisable to consummate made by any member of the Purchaser Group under any applicable Laws and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement Agreement, including any such filings or submissions related to Product Registrations, (Eii) would individually or two (2) calendar days prior to Closing, submit a Remediation Certification, as defined under ISRA, to the New Jersey Department of Environmental Protection for each Acquired Leased Real Property in New Jersey subject to ISRA identifying Purchaser as the aggregate person responsible for ISRA compliance after Closing along with a Remediation Cost Review and RFS/FA Form, a Remediation Funding Source instrument and 1% annual surcharge check, as required, (iii) reasonably be expected to significantly cooperate with the Company in exchanging such information and adversely affect providing reasonable assistance as the business, financial condition or results of operations of Company may reasonably request in connection with any filings made by the Companies and their Subsidiaries, taken as a whole.
(f) Subject Company pursuant to Section 5.7(e6.4(a), and (iv) (A) supply promptly any additional information and documentary material that may be requested in connection with the event that any administrative filings made pursuant to this Section 6.4(b) or judicial action or proceeding is instituted Section 6.4(a) and (or threatened to be institutedB) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and take all actions necessary to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreementobtain all required clearances.
(gc) Each From and after the date hereof, the Parties will cooperate in connection with the transfer of Buyers and Seller the transferable Product Registrations to Purchaser as of the Closing Date and the Companies obtaining by Purchaser of new Product Registrations to the extent a Product Registration is not transferable. Promptly following the date hereof, the Parties will agree upon procedures to ensure a transition from the Sellers to Purchaser of all of the activities required to be undertaken by the holder of the Product Registrations, including adverse experience reporting, quarterly and annual reports to the FDA, handling and tracking of complaints, sample tracking, and communication with health care professionals and customers. Subject to Section 6.4(d), after the Closing, Purchaser shall promptly advise assume all responsibility for the Product Registrations, including all responsibility for communications with the FDA and any other Governmental Body concerning the Products. The Parties shall cooperate in making and maintaining all required regulatory filings, and reporting all material communications (whether written or oral) from a Governmental Body in relation to a transfer and, to the extent one r, as the case may be) participation to effectuate the transfer of the Product Registrations, it shall give the other upon receiving any communication from Party reasonable notice of all meetings and telephone calls with any Governmental Entity Body expected to have a material impact upon a transfer and give the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is other Party a reasonable likelihood that any requisite Regulatory Approval will not be obtained opportunity to participate at each such meeting or that the receipt of any such approval may be materially delayedtelephone call.
(hd) In furtherance and not in limitation of On the covenants of Closing Date (or within such time after the parties contained in Sections 5.7(a), (d), (eClosing Date as permitted under applicable Law) or (f)as soon as practicable after the Closing Date, with respect Sellers shall submit to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), FDA the costs paid to any third party with respect to Third Party Consents shall be borne 50% by executed Seller and 50% by BuyersFDA Transfer Letters. To the extent required, Sellers shall submit or deliver to the FDA and other appropriate Governmental Bodies within timelines as prescribed under applicable Law such documents and instruments of conveyance as necessary and sufficient to effectuate the transfer of each Permit and Governmental Authorization to Purchaser under applicable Law on the Closing Date or as soon as practicable after the Closing Date. Unless otherwise required by applicable Law, from the Closing Date until the relevant date of transfer for each Product Registration, Sellers shall use commercially reasonable efforts to maintain or cause to be maintained in force each such Product Registration and Purchaser shall promptly reimburse Sellers for the reasonable documented and out-of-pocket costs and expenses incurred by Sellers in connection with maintaining or causing to be maintained such Product Registrations. Unless otherwise required by applicable Law and as may be agreed between the Parties, Sellers shall use commercially reasonable efforts to progress or cause to be progressed any pending application filed prior to the Closing Date for a Product Registration. Notwithstanding anything contained in this Agreement to the contrary (including Section 6.1), Sellers shall not, from the Closing Date until the relevant date of transfer for such Product Registration, absent the prior written consent from Purchaser, or as is required by a Governmental Body, withdraw or suspend a Product Registration that a party seeking a Third Party Consent is unable pending as of the Closing Date. The Sellers shall ensure that an employee or other authorized person is reasonably available to obtain such Third Party Consent for anything necessary, proper or advisable Purchaser to consummate the transactions effectuate any transfers contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with Section 6.4 and occurring after the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(ie) As used in this AgreementPrior to the Closing, the term “Regulatory Laws” means any Law enacted actions taken by any Governmental Entity relating Sellers pursuant to antitrust matters, insurance, or regulating competition.Section 6.4(c) shall be at the sole cost and expense of the Sellers. All documented and out-of-pocket costs and expenses incurred by Sellers after the Closing at the request of Purchaser in connection with this
Appears in 1 contract
Samples: Asset Purchase Agreement
Regulatory Matters. (a) Subject The Company shall promptly prepare and file with the SEC the Proxy Statement and Parent shall promptly prepare and file with the SEC the Form F-4, in which the Proxy Statement will be included as part of as a prospectus. Parent shall promptly prepare the Parent Proxy Statement, if required, and promptly mail or deliver the Parent Proxy Statement to its stockholders and file it with all securities regulatory authorities having jurisdiction. Each of Parent and the terms Company shall use their commercially reasonable efforts to have the Form F-4 declared effective under the Securities Act as promptly as practicable after such filing, and conditions of the Company shall thereafter mail or deliver the Proxy Statement to Company stockholders. 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 and Company Stock Options as may be reasonably requested in connection with any such action. Each of Parent and the Company shall, as promptly as reasonably practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Proxy Statement and/or the Form F-4 received from the SEC. Each party shall also advise the other party, as promptly as reasonably practicable after receipt of notice thereof, of the time when the Form F-4 has become effective, the issuance of any stop order, or the suspensions of the qualification of the Parent Common Shares issuable in connection with the Merger for offering or sale in any jurisdiction. The parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement, Parent Proxy Statement and the Form F-4 prior to filing such with the SEC and will provide each other with a copy of all such filings with the SEC to the extent not otherwise publicly available. If at any time prior to the Effective Time, Parent or the Company has knowledge of any information relating to Parent or the Company, or any of their respective officers, directors or other affiliates, which should be set forth in an amendment or supplement to the Form F-4, Parent Proxy Statement or the Proxy Statement so that any 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 will which discovers such information shall promptly notify the other party and, to the extent required by applicable Laws, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required under applicable Law, disseminated to the stockholders of the Company.
(b) The parties shall cooperate with each other and use its their respective commercially reasonable best efforts to takepromptly prepare and file all necessary documentation (including notification and report forms required under the HSR Act and any applicable Laws in other jurisdictions governing antitrust, competition or cause to be taken, all actionsmerger control matters), to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals, clearances and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement, Agreement (including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the CompaniesMerger), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 use commercially reasonable efforts to cause the expiration or termination of the any applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act Act, and any applicable Laws in other jurisdictions governing antitrust or merger control matters, to supply as promptly as practicable any other Regulatory Laws as soon as practicable. In furtherance additional information and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts documentary material that may be requested pursuant to obtain early termination of the waiting period under the HSR Act.
(d) Each , or any applicable Laws in foreign jurisdictions governing antitrust, competition or merger control matters and to comply with the terms and conditions of Buyersall such permits, on consents, approvals, clearances and authorizations of all such Governmental Entities. The Company and Parent shall have the one handright 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 Seller and the Companiesany of their respective Subsidiaries, on the other handwhich appear in any filing made with, shallor written materials submitted to, any third party or any Governmental Entity in connection with the efforts referenced in Section 5.7(c) 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 obtain the obtaining of all requisite approvals permits, consents, approvals, clearances and authorizations for 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 by this Agreement, use its reasonable best efforts including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to (i) cooperate such transactions. Notwithstanding the foregoing, nothing in all respects with each other this Agreement shall require Parent or the Company to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals, clearances and authorizations of third parties or Governmental Entities, that would reasonably be expected to have a material adverse effect (measured on a scale relative to the Company and its Subsidiaries, taken as a whole) on Parent, the Company or the Surviving Company (a “Materially Burdensome Condition”). In addition, the Company and Parent agree to cooperate and use their commercially reasonable efforts to prepare and file such petitions and filings, and to obtain such permits, consents, approvals, clearances and authorizations of third parties and Governmental Entities, that may be necessary or advisable to effect any filing mergers and/or consolidations of Subsidiaries of the Company and Parent following consummation of the Merger.
(c) Subject to the provisos contained in Section 7.1(b), if any administrative or submission and in connection with any investigation judicial action or other inquiryproceeding, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions transaction contemplated by this Agreement, or any other agreement contemplated hereby, Seller each of the Company and Buyers each Parent shall cooperate in all respects with each the other and shall use its their respective commercially reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 7.1 shall limit a party’s right to terminate this Agreement pursuant to Section 9.1(b) or 9.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 7.1.
(gd) Each of Buyers and Seller Parent and the Companies Company shall, upon request, furnish to the other all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, Parent Proxy Statement, the Form F-4 or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Entity, the NYSE or the TSX in connection with the Merger and the other transactions contemplated by this Agreement.
(e) Each of Parent, MergerCo and the Company shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement Agreement, or from the NYSE or TSX, that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Requisite Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d)and, (e) or (f), with respect to the consentsextent permitted by applicable Law, waivers, approvals, authorizations and permits sought to be obtained from third parties (shall promptly provide the other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain copy of such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closingcommunication.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Capital Gold Corp)
Regulatory Matters. (a) Subject to The Company shall promptly prepare and file with the terms and conditions SEC, no later than thirty-five (35) days after the date of this Agreement, the Proxy Statement, and each party will of the Parent Entities shall cooperate with the Company in connection with the preparation of the Proxy Statement. The Company shall use its reasonable best efforts to takehave the Proxy Statement cleared by the SEC as promptly as practicable after such filing and shall thereafter as promptly as practicable (but in any event no later than ten (10) days thereafter) mail or deliver the Proxy Statement to its stockholders. The Company shall as promptly as reasonably practicable notify Parent of the receipt of any oral or written comments from the staff of the SEC relating to the Proxy Statement. The Company shall cooperate and provide Parent with the opportunity to review and comment on (i) the draft of the Proxy Statement (including each amendment or supplement thereto) and (ii) all written responses to requests for additional information by and replies to written comments of the staff of the SEC, prior to the filing of the Proxy Statement with or sending such to the SEC, and the Company will (x) consider Parent’s comments in good faith, (y) not make any statement therein regarding Parent or any of its affiliates without Parent’s consent (not to be unreasonably withheld), except as may be required by applicable Law and (z) provide to Parent copies of all such filings made and correspondence with the SEC or its staff with respect thereto. If at any time prior to the Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to its stockholders.
(b) 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 advisable to consummate the transactions contemplated by this Agreement (including the Merger, the Bank Merger and the Holdco Merger), and to comply with the terms and conditions of all such permits, consents, approvals 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, each of the Parent Entities and the Company shall, and shall cause their respective Subsidiaries to, prepare and file any applications, notices and filings required to be filed with any regulatory agency in order to obtain the Requisite Regulatory Approvals; provided, that, notwithstanding that Company Bank is required to file an application under the Bank Merger Act, each of the Parent Entities shall, and shall cause their respective Subsidiaries to, prepare such application and be responsible for the approval process relating thereto. In connection with the foregoing, any filing party shall request confidential treatment for any information another party shall request be kept confidential, to the extent permitted by applicable Law, and shall use reasonable best efforts to cause such request to be granted. Subject to Section 6.1(c), each of the Parent Entities and the Company shall use, and shall cause its applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval as promptly as reasonably practicable. Each of the Parent Entities 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, any filing made with, or cause written materials 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 parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to be takenthe obtaining of all permits, consents, approvals and authorizations of all actions, to file, or cause to be filed, all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement, and each party will keep the other parties apprised promptly of the status of filings and applications, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and communications with Governmental Entities, including and all amendments other matters relating to materials previously filed that are necessary to reflect changes in this Agreement from completion of the Initial Agreement.
(b) transactions contemplated hereby. Each of Buyers and Seller shall, upon request, furnish to party shall consult with the other all information concerning itself (parties in advance of any meeting or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection conference with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller Parent Entities and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, Company shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned overturned, any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and would restrain, prevent or delay the Closing; provided that prohibits, prevents or restricts consummation none of the Parent Entities shall have any obligation to litigate or participate in the litigation of any action, suit or proceeding, whether judicial or administrative, in order to oppose or defend any action, suit or proceeding by the Federal Reserve Board, the OCC, the FDIC, the NYDFS, the SEC or FINRA. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require any of the Parent Entities or permit the Company to take any action, or commit to take any action, or agree to any condition or restriction that would (i) reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, results of operations or condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole after giving effect to the transactions contemplated hereby (but measured on a scale relative to the Company and its Subsidiaries, taken as a whole as of the date hereof), (ii) cause Parent to lose, suffer any diminution in or have otherwise adversely modified or impaired any of its legislative or regulatory rights, statuses or privileges or have an adverse effect on the regulatory exemptions available to Parent due to any of the foregoing or (iii) cause Parent or any of its Subsidiaries (other than Parent Bank, Company Bank and their respective Subsidiaries) to either (x) divest, restrict or be subject to any limit on any lawful business or activity (other than, in the case of this clause (iii), either (A) the closure of offices, or similar requirements, resulting from competition issues or (B) regulatory conditions that would be de minimis) or (y) be subject to any prior notice or approval rights with respect to the ability to engage in any lawful business or activity (each of clauses (i), (ii) and (iii), a “Materially Burdensome Regulatory Condition”).
(d) Each of the Parent Entities 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 Proxy Statement or any other 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 Merger, the Bank Merger, the Holdco Merger and the other transactions contemplated by this Agreement.
(ge) Each To the extent permitted by applicable Law, each of Buyers and Seller the Parent Entities and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, “Requisite Regulatory Approvals” shall mean all regulatory authorizations, consents, orders or approvals from the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust mattersOCC, insurancethe Federal Reserve Board and, or regulating competitionif required, the FDIC.
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will Sterling and North Valley shall promptly cause the Registration Statement to be prepared, and filed by Sterling, with the SEC. Sterling and North Valley shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing thereof. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to North Valley or Sterling is discovered by North Valley or Sterling, as applicable, which should be set forth in an amendment of, or a supplement to, the Registration Statement, the discovering party shall promptly inform the other party with all relevant information relating to such event, whereupon Sterling shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of North Valley and Sterling (if prior to the meeting of the shareholders of North Valley pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to the shareholders entitled to vote at such meeting. Sterling shall also use 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 Institution Merger Agreement, and North Valley shall furnish all information concerning North Valley and the holders of North Valley 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and any Governmental Entity that are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Merger and the Institution Merger). North Valley and Sterling 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 North Valley or Sterling, as the case may be, 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. In addition, including preparing counsel to North Valley shall be provided with a draft of all regulatory applications prior to their submission and filing shall have a period of five business days within which to review and comment on such applications. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to consummation of the transactions contemplated herein.
(bc) Each of Buyers North Valley and Seller shall, upon request, Sterling shall each furnish to the other with all information concerning itself (or in the case of Seller, the Companies), each other and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement, the Proxy Statement/Prospectus or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, Sterling or any of their respective Subsidiaries North Valley to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, Sterling and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies North Valley shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) As promptly as practicable following the date of this Agreement, ViewPoint, with the assistance and cooperation of Highlands, shall promptly prepare and file with the SEC the Form S-4, in which the Proxy Statement, which will be prepared by Highlands with the assistance of ViewPoint, will be included. Each of ViewPoint and Highlands shall use its commercially reasonable best efforts 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 Highlands and ViewPoint shall use its commercially reasonable best efforts to have the Form 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 Form S-4 being declared effective, Highlands shall thereafter mail or deliver the Proxy Statement to its shareholders. ViewPoint 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, and Highlands shall furnish all information concerning Highlands and the holders of Highlands Common Stock as may be reasonably requested in connection with any such action. If at any time prior to the Effective Time any event occurs or information relating to Highlands or ViewPoint, or any of their respective affiliates, directors or officers, should be discovered by the Highlands or ViewPoint that should be set forth in an amendment or supplement to either the Form S-4 or the 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 SEC and, to the extent required by applicable law, disseminated to Highland’s shareholders.
(b) In addition to their obligations pursuant to Section 6.1(a), Highlands and ViewPoint shall make all necessary filings with respect to the Merger and the other transactions contemplated by this Agreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide each other with copies of any such filings. ViewPoint and Highlands shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of ViewPoint Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to the Proxy Statement or the Form 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 Proxy Statement or the Form S-4 shall be filed without the approval of each of Highlands and ViewPoint, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions of set forth in this Agreement, each party will ViewPoint and Highlands shall, and shall cause their respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other 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 preparing (i) the satisfaction of the conditions precedent to the obligations of Highlands (in the case of ViewPoint) or ViewPoint (in the case of Highlands) 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 filing approvals from, or any exemption by, any 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 Governmental Entity, and (iv) the execution and delivery of any additional instruments necessary to consummate the 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 documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments to materials previously filed Entities that are necessary or advisable to reflect changes in consummate the transactions contemplated by this Agreement from (including the Initial 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. In furtherance (but not in limitation) of the foregoing, ViewPoint shall, and shall cause ViewPoint Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the FRB, OCC, and under the HSR Act within thirty (30) days of the date hereof. Highlands and ViewPoint 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 Highlands or ViewPoint, 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 or any 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 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 by this Agreement.
(bd) Each of Buyers ViewPoint and Seller Highlands shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies)itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of BuyersViewPoint, Seller, the Companies, Highlands or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(de) Each of Buyers, on the one hand, ViewPoint and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies Highlands shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (as defined in Section 7.1(e)) will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will BSB Bancorp and SKAN (as to information to be included therein pertaining to SKAN) shall promptly cause to be prepared and filed with the SEC a registration statement of BSB Bancorp on Form S-4, including the Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the BSB Bancorp Common Stock to be issued in the Merger, and for soliciting the approval of this Agreement and the Merger by the shareholders of SKAN. BSB Bancorp and SKAN shall use its their reasonable best efforts to takehave the Registration Statement declared effective by the SEC as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC staff regarding the information contained in the Registration Statement. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to SKAN is discovered by SKAN which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, SKAN shall promptly inform BSB Bancorp, and shall furnish BSB Bancorp with all necessary information relating to such event whereupon BSB Bancorp shall promptly cause an appropriate amendment to the Registration Statement to be takenfiled with the SEC. Upon the effectiveness of such amendment, each of BSB Bancorp and SKAN (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. If at any time after the Registration Statement is filed with the SEC, and prior to the Closing Date, any event relating to BSB Bancorp is discovered by BSB Bancorp which should be set forth in an amendment of, or a supplement to, the Registration Statement, including the Prospectus/Proxy Statement, BSB Bancorp shall promptly inform SKAN, and BSB Bancorp shall promptly cause an appropriate amendment to the Registration Statement to be filed with the SEC. Upon the effectiveness of such amendment, each of BSB Bancorp and SKAN (if prior to the meeting of shareholders pursuant to Section 6.3 hereof) will take all necessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to its shareholders entitled to vote at such meeting. BSB Bancorp shall also use 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 Bank Merger Agreement and SKAN shall furnish all information concerning SKAN and the holders of SKAN 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper 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 Bank Merger). SKAN and BSB Bancorp 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 SKAN or BSB Bancorp, as the case may be, 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; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller SKAN shall, upon request, furnish to the other BSB Bancorp with all information concerning itself (or in the case of Seller, the Companies), SKAN and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries BSB Bancorp to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(cd) In furtherance SKAN shall provide all information relating to SKAN and its Subsidiaries necessary for inclusion in the Registration Statement, and such information shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in limitation light of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and circumstances in any event within 5 business days) and to make, or cause to be which they are made, not misleading. Each of SKAN and BSB Bancorp shall cause the filings and authorizationsportions of the Registration Statement relating to it or any of its Subsidiaries to comply in all material respects with the provisions of the Securities Act, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Exchange Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance rules and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesregulations thereunder.
(e) In furtherance BSB Bancorp and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies SKAN shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (BSB Bancorp Inc)
Regulatory Matters. (a) Subject In connection with the solicitation of approval of the Merger by the shareholders of PIC WISCONSIN and the registration of the shares of PRA Common Stock to be issued upon consummation of the Merger, the parties will prepare, and PRA will file with the SEC the S-4 (which shall comply as to form, in all material respects, with the provisions of the Securities Act and other applicable law). PRA and PIC WISCONSIN will use all reasonable efforts to respond to the terms comments of the SEC staff with respect to the S-4 and conditions to have the S-4 declared effective by the SEC as soon as practicable. As soon as practicable after the S-4 is declared effective, PIC WISCONSIN shall mail or deliver the Proxy Statement included in the S-4 to its shareholders. PRA covenants and agrees that the information provided with respect to PRA and NEWCO and PIC WISCONSIN covenants and agrees that the information provided with respect to PIC WISCONSIN provided and to be provided for use in the S-4 will not, on the date it becomes effective, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. Each of PRA and PIC WISCONSIN agree promptly to correct any such information provided by it which shall have become false or misleading in any material respect and to take all steps necessary to file with the SEC and have declared effective or cleared by the SEC any amendment or supplement to the S-4 so as to correct the same and to cause the Proxy Statement so corrected to be distributed to the shareholders of PIC WISCONSIN to the extent required by applicable law. To the extent that any opinion regarding the tax consequences of the Merger is required with respect to the S-4, PRA and PIC WISCONSIN will both cause each of their respective tax counsel to issue substantially similar opinions in the form contemplated herein. PRA shall not be required to maintain the effectiveness of the S-4 for the purpose of resale by the affiliates of PRA and PIC WISCONSIN, as such term is used in Rule 145 of the SEC.
(b) Prior to filing the S-4, PIC WISCONSIN shall prepare consolidated financial statements of PIC WISCONSIN and the PIC WISCONSIN Subsidiaries in accordance with GAAP as of and for the years ended December 31, 2005 and, if required to be included in the S-4, 2004 and 2003 and for the interim period required to be included in the S-4 (the "GAAP Financial Statements"), which financial statements shall be unaudited and which shall include balance sheets at the end of each period, and statements of shareholders' equity, earnings and cash flow for each of said periods, and notes thereto (except in the case of interim financial statements). PRA shall have the right to request that PIC WISCONSIN cause its GAAP Financial Statements to be audited. PIC WISCONSIN shall select the accounting firm to perform, at its sole cost and expense, such financial statements; provided, however, that PRA shall have the right to request that such accounting firm demonstrate that it is an independent registered public accounting firm (as defined in Section 2(a)(12) of SOX); provided further, that PRA shall hold PIC WISCONSIN harmless for the cost and expense of the audit pursuant to this Agreement, each party will Section 7.1(b) if this Agreement is terminated.
(c) The parties shall use its all reasonable best commercial efforts to takecause their respective independent auditors to render any consent required by the SEC to include its report on the PIC WISCONSIN consolidated financial statements or the PRA consolidated financial statements, as the case may be, in the S-4 and to refer to said accountants as experts in the S-4 with respect to the matters included in said report.
(d) To the extent applicable, PIC WISCONSIN and PRA shall prepare and file with all necessary Governmental Authorities (i) a request for approval of the Merger by applicable Insurance Regulators on Form A or cause an such other form as may be required by the Insurance Regulators and (ii) the preacquisition notification and report forms and related material on Form E or any other forms required by a necessary Governmental Authority in connection with the Merger.
(e) PRA will prepare and file, and PIC WISCONSIN will cooperate with and assist PRA in preparing and filing, all statements, applications, correspondence or forms required to be takenfiled with appropriate state securities law regulatory authorities to register or qualify the shares of PRA Common Stock to be issued upon consummation of the Merger or to establish an exemption from such registration or qualification (the "Blue Sky Filings").
(f) Pursuant to the HSR Act, all actions, to PRA and PIC WISCONSIN will promptly prepare and file, or cause to be filed, the HSR Act Report with the Pre-Merger Notification Agencies in respect of the transactions contemplated by this Agreement, which filing shall comply as to form with all documents requirements applicable thereto and all of the data and information reported therein shall be accurate and complete in all material respects. Each of PRA and PIC WISCONSIN will promptly comply with all requests, if any, of the Pre-Merger Notification Agencies for additional information or documentation in connection with the HSR Act Report forms filed by or on behalf of each of such parties pursuant to dothe HSR Act, and all such additional information or documentation shall comply as to form with all requirements applicable thereto and shall be accurate and complete in all material respects.
(g) Each party shall provide to the other, (i) promptly after filing thereof, copies of all statements, applications, correspondence or forms filed by such party prior to the Closing Date with state securities law regulatory authorities, the SEC, the Pre-Merger Notification Agencies, the Insurance Regulators and any other Governmental Authority in connection with the transactions contemplated by this Agreement and (ii) promptly after delivery to, or cause to be donereceipt from, such regulatory authorities, all things necessarywritten communications, proper letters, reports or other documents relating to the transactions contemplated by this Agreement.
(h) 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, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Authorities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Authorities. PRA and PIC WISCONSIN 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 PRA or PIC WISCONSIN, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Authority in connection with the transactions contemplated by this Agreement. The cooperation and coordination of each party required under this Section 7.1 shall include giving timely public notice of any public hearings regarding the transactions contemplated by this Agreement, including preparing and filing having its representatives attend and testify at such public hearings. In addition, each of the parties hereto shall act reasonably and as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Authorities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement.
(bi) Each of Buyers PRA and Seller PIC WISCONSIN shall, upon request, furnish to the each other with all information concerning itself (or in the case of Sellerthemselves, the Companies), its their Subsidiaries, directors, officers and shareholders or stockholders, as applicable, and such other matters as may be reasonably necessary or advisable in connection with the S-4 or any other statement, filing, notice or application made by or on behalf of BuyersPRA, Seller, the Companies, PIC WISCONSIN or any of their respective Subsidiaries to any Governmental Entity Authority in connection with the Merger and the other transactions contemplated by this Agreement.
(c) In furtherance . PIC WISCONSIN and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, PIC WISCONSIN Subsidiaries on the one hand, and Seller and the Companies, PRA on the other, shall reasonably cooperate with each other handand each other's agents, shallincluding independent accountants, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for preparation of the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations GAAP financial statements of PIC WISCONSIN and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection PIC WISCONSIN Subsidiaries with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject respect to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references periods prior to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferencesClosing Date.
(ej) In furtherance PRA and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies PIC WISCONSIN shall promptly advise the each other upon receiving any communication from any Governmental Entity Authority relating to the consent or approval of which from such Governmental Authority that is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayedAgreement.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Merger Agreement (Proassurance Corp)
Regulatory Matters. (a) Subject Company shall promptly prepare and file with the SEC the Proxy Statement. Company shall use reasonable best efforts to make such filings within thirty (30) days of the terms and conditions date of this Agreement. Buyer shall cooperate, each party and shall cause its affiliates to cooperate, with the Company in connection with the preparation and filing of the Proxy Statement, including using reasonable best efforts to promptly furnish to Company in writing upon request any and all information relating to Buyer and its affiliates as may be required to be set forth in the Proxy Statement under applicable law. Company will use its reasonable best efforts to takeresolve all SEC comments, if any, with respect to the Proxy Statement as promptly as practicable after receipt thereof. As promptly practicable after Company’s receipt of confirmation by the SEC that the SEC does not intend to review the preliminary Proxy Statement or cause that the SEC has no further comments, Company shall use its reasonable best efforts to be taken, file with the SEC and mail or deliver the definitive Proxy Statement to its shareholders.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings (and in the case of the applications, notices, petitions and filings required to be filedobtain the Requisite Regulatory Approvals, use their reasonable best efforts to make such filings within thirty (30) days of the date of this Agreement), to obtain as promptly as practicable all documents permits, consents, approvals and to do, or cause to be done, authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this AgreementAgreement (including the Merger and the Bank Merger), including preparing and filing as promptly as practicable to comply with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all such third parties and Governmental Entities. Buyer and Company shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval and any approvals required for the Bank Merger as promptly as reasonably practicable. The parties shall cooperate with each other in connection therewith (including all amendments the furnishing of any information and any reasonable undertaking or commitments that may be required to materials previously filed that are necessary to reflect changes in this Agreement from obtain the Initial Agreement.
(bRequisite Regulatory Approvals) Each of Buyers and Seller shall, upon request, furnish shall respond as promptly as practicable to the requests of Governmental Entities for documents and information. Buyer and 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 concerning itself (relating to Company or in Buyer, as the case of Sellermay be, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to 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. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing and with sufficient opportunity to comment, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information or confidential supervisory information filed under a claim of confidentiality. 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 herein. 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; provided, that each party shall promptly advise the other party with respect to substantive matters that are addressed in any meeting or conference with any Governmental Entity which the other party does not attend or participate in, to the extent permitted by such Governmental Entity and applicable law.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification Buyer, Merger Sub and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties Company shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible. Notwithstanding the foregoing, in effect and that prohibitsno event shall Buyer, prevents Merger Sub or restricts consummation Buyer Bank be required to (x) agree to any prohibition, limitation, condition or other requirement which would (A) prohibit or materially limit the ownership or operation by Buyer or any of its Subsidiaries of all or any material portion of the business or assets of Company or any of its Subsidiaries or Buyer or its Subsidiaries, (B) compel Company or any of its Subsidiaries or Buyer or any of its Subsidiaries to dispose of or hold separate all or any material portion of the business or assets of Company or any of its Subsidiaries or Buyer or any of its Subsidiaries, or (C) compel Buyer or any of its Subsidiaries to take any action, or commit to take any action, or agree to any condition or request, if the prohibition, limitation, condition or other requirement described in clauses (A)-(C) of this sentence could reasonably be expected to have a material adverse effect on the future operation by Buyer and its Subsidiaries of the combined businesses and operations of Buyer Bank and Company Bank, taken as a whole (together, the “Materially Burdensome Regulatory Condition”).
(d) Buyer and 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 Proxy Statement or any other statement, filing, notice or application made by or on behalf of Buyer, Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Each of Buyer and Company agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in the Proxy Statement and any amendment or supplement thereto will, at the time of filing and the date of mailing to the respective shareholders of Company and at the time of the Company Meeting, 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, in the light of the circumstances under which such statement was made, not misleading, and (iii) any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals will, at the time each is filed, 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 Buyer and Company further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the Proxy Statement 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 appropriate steps to correct the Proxy Statement.
(ge) Each of Buyers Buyer and Seller and the Companies Company shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject The Stockholders and Harbinger shall use their reasonable commercial efforts to cause the terms Company and conditions MSV LLC to file the FCC applications seeking the FCC Approval with the FCC on or before December 31, 2008. The Stockholders and Harbinger shall, and the Stockholders and Harbinger shall use their reasonable commercial efforts to cause the Company and MSV LLC to, each at its own expense, use their reasonable commercial efforts to prosecute the FCC applications and obtain the FCC Approvals, cooperate in providing all information requested by the FCC and take all steps reasonably necessary or appropriate to prepare, file and prosecute such applications and obtain the FCC Approvals. In the event any Person petitions the FCC to deny or otherwise challenges the applications for the FCC Approvals or any other application filed or amended to effectuate the purposes of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, event the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, FCC grants the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with applications for the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act FCC Approvals or any other Regulatory Laws as soon as practicable. In furtherance application filed or amended to effectuate the purposes of this Agreement and not in limitation any Person petitions for review or reconsideration of such grant before the foregoingFCC, or seeks judicial review of such grant, then the parties shall request Stockholders and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one handHarbinger shall, and Seller the Stockholders and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, Harbinger shall use their reasonable best commercial efforts to (x) takecause the Company and MSV LLC to, use their reasonable commercial efforts to oppose such petition or cause to be takenchallenge before the FCC and vigorously defend the grant of such applications by the FCC diligently and in good faith, all other actions and (y) doprovided that the Stockholders, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTCHarbinger, the DOJCompany or MSV LLC shall not have any obligation to participate in any evidentiary hearing on any such application. Should the FCC deny any such application or grant any such application subject to material adverse conditions, state antitrust enforcement authorities the Stockholders and Harbinger shall, and the Stockholders and Harbinger shall use their reasonable commercial efforts to cause the Company and MSV LLC to, utilize their reasonable commercial efforts to secure timely reconsideration or competition authorities review of such denial or conditions, provided that the Stockholders, Harbinger, the Company or MSV LLC shall not have any obligation to participate in any evidentiary hearing on any such denial or imposition of conditions. The Parties shall give each other nation a reasonable opportunity to review any and all pleadings, documents, applications and other materials filed by any Stockholder or other jurisdiction may assert under any Law Harbinger with respect to any of the transactions contemplated hereby, and foregoing prior to avoid or eliminate its filing. The Parties shall provide to each and every impediment under any Law that may be asserted by any Governmental Entity other copies of all material communications with respect the FCC related to the transactions contemplated by this Agreement so as applications for the FCC Approval and provide to enable the Closing each other a reasonable opportunity to occur as soon as reasonably practicable (contribute to and in review any event no later than the End Date)and all pleadings, in each case as may be required in order to avoid the entry ofdocuments, or to effect the dissolution of, any injunction, temporary restraining order or applications and other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection materials filed with the transactions contemplated FCC by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive each other from the date hereof through the Escrow Break Date. If consummation of the transactions contemplated by this Agreement require the approval of Industry Canada, the obligations of the Stockholders and Harbinger under this Section 5.3 shall apply to applications, pleadings, documents and other materials and communications required to be filed with Industry Canada mutatis mutandis. The Stockholders and Harbinger further agree that they will use their reasonable commercial efforts to support, and will use their reasonable commercial efforts to cause the Company and MSV LLC to support, any further applications that Harbinger or (E) would individually or its Affiliates may make in the aggregate reasonably be expected to significantly future for FCC, Industry Canada and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect regulatory approvals relating to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper Company or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive ClosingMSV LLC.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Securities Purchase Agreement (Harbinger Capital Partners Master Fund I, Ltd.)
Regulatory Matters. (a) Subject to Upon the terms execution and conditions delivery of this Agreement, each party will EFC and MidConn Bank (as to information to be included therein pertaining to MidConn Bank) shall promptly cause to be prepared and filed with the SEC a registration statement of EFC on Form S-4, including the Joint Proxy Statement/Prospectus (the "Registration Statement") for the purpose of registering the EFC Common Stock to be issued in the Merger (including the EFC Common Stock that may be issued upon exercise of the options referred to in Section 1.6 hereof), and for soliciting the approval of this Agreement and the Merger by the shareholders of MidConn Bank and for soliciting the approval by the shareholders of EFC of the issuance of the EFC Common Stock to MidConn Bank's shareholders as part of the Merger. The Joint Proxy Statement/Prospectus also shall be filed by MidConn Bank with the FDIC on Form F-5 (the "Form F-5"). EFC and MidConn Bank shall use its their reasonable best efforts to takehave the Registration Statement and the Form F-5 declared effective by the SEC and approved by the FDIC, respectively, as soon as possible after the filing. The parties shall cooperate in responding to and considering any questions or comments from the SEC and FDIC staff regarding the information contained in the Registration Statement concerning MidConn Bank. If at any time after the Registration Statement and the Form F-5 are filed with the SEC and FDIC, and prior to the Closing Date, any event relating to any party hereto is discovered by such party, which should be set forth in an amendment of, or a supplement to, the Registration Statement and the Form F-5, including the Joint Prospectus/Proxy Statement (including, without limitation, any change in the O & Co. Fairness Opinion), such party shall promptly so inform EFC and MidConn Bank (as applicable), and shall furnish EFC and MidConn Bank (as applicable) with all necessary information relating to such event whereupon EFC and MidConn Bank shall promptly cause an appropriate amendment to the Registration Statement and the Form F-5 to be takenfiled with the SEC and the FDIC. Upon the effectiveness of such amendment, EFC and MidConn Bank (if prior to the meetings of shareholders pursuant to Section 6.3 hereof) will take all actionsnecessary action as promptly as practicable to permit an appropriate amendment or supplement to be transmitted to their respective shareholders entitled to vote at such meetings. EFC shall also use 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 Articles of Combination and MidConn Bank shall furnish all information concerning MidConn Bank and the holders of MidConn Bank 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 best efforts to promptly prepare and file all necessary documentation, to fileeffect all applications, or cause to be filednotices, all documents petitions and filings, and to doobtain as promptly as practicable all permits, or cause to be doneconsents, approvals and authorizations of all things necessary, proper third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Merger). MidConn Bank and EFC 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 MidConn Bank or EFC and Eagle Bank, as the case may be, 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; provided, including preparing however, that nothing contained herein shall be deemed to provide either party with a right to review any information provided to any Governmental Entity on a confidential basis in connection with the transactions contemplated hereby. In exercising the foregoing right, each of the parties hereto shall act reasonably and filing as promptly as practicable practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all documentation to effect all necessary filingspermits, consents, waivers, approvals, authorizations, permits or orders from approvals and authorizations of all third parties and Governmental Entities, including all amendments Entities necessary or advisable to materials previously filed that are necessary to reflect changes in consummate the transactions contemplated by this Agreement from and each party will keep the Initial Agreementother apprised of the status of matters relating to contemplation of the transactions contemplated herein.
(bc) Each of Buyers and Seller MidConn Bank shall, upon request, furnish to the other EFC with all information concerning itself (or in the case of Seller, the Companies), MidConn Bank and its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Registration Statement, the Form F-5 or any other statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, EFC or any of their respective Subsidiaries Eagle Bank to any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, EFC and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references to the value of this transaction or alternatives to this transaction) to be given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies MidConn Bank shall promptly advise the each other upon receiving any communication from any Governmental Entity the whose consent or approval of which is required for consummation of the transactions contemplated by this Agreement that which causes such party to believe that there is a reasonable likelihood that any requisite Requisite Regulatory Approval (defined in Section 7.1(c) hereof) will not be obtained or that the receipt of any such approval may will be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Regulatory Matters. (a) Subject Each of the Company and Shareholder agrees to the terms cooperate and conditions of this Agreement, each party will use its reasonable best efforts to takeensure, including by communicating with each other with respect to their respective purchases of Common Stock, that neither Shareholder nor any of its Affiliates will become, or cause control, a “bank holding company” within the meaning of the BHC Act, a “savings and loan holding company” within the meaning of the Savings and Loan Holding Company Act or be required to be takenfile a notice of any type under the CBC Act, all actionsor otherwise become subject to regulation by a regulatory body due, in any such case, to fileShareholder’s ownership of Common Stock or relationship with the Company pursuant hereto or pursuant to the Purchase Agreement (each, a “Company Control Effect”). The Shareholder shall not take any action which it knows would or would reasonably be expected to cause a Company Control Effect with respect to Shareholder or any of its Affiliates. The Company shall not take any action which it knows would or would reasonably be filedexpected to cause a Company Control Effect with respect to Shareholder or any of its Affiliates, all documents and to doprovided, or cause to be donehowever, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes nothing in this Agreement shall be construed to preclude the Company or any of the Company’s Affiliates from 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 each case, provided that, where there is a reasonable risk that such action would reasonably be expected to result in a Company Control Effect, Shareholder is given the Initial Agreementright to participate (on the same terms generally offered by the Company to other securityholders) in such redemption, recapitalization, or repurchase pro rata (in accordance with the Shareholder Percentage Interest) (it being understood that Shareholder shall promptly inform the Company of its determination as to whether to participate and that, if it does not participate, it shall promptly dispose of a number of shares of Common Stock necessary to avoid a Company Control Effect arising from such redemption, recapitalization or repurchase).
(b) Each Notwithstanding anything in this Agreement, in no event will Shareholder or its Affiliates be obligated to:
(i) without limitation to clause (ii) below, (A) propose or accept any divestiture of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case any of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, Shareholder’s or any of their respective Subsidiaries its Affiliates’ assets, or (B) accept any operational restriction on Shareholder’s or any of its Affiliates’ business, or agree to take any action that limits Shareholder’s or its Affiliates’ commercial practices in any way (except as they relate to the Company and its Subsidiaries) to maintain its investment hereunder other than according to any Governmental Entity in connection with customary commitments provided to the transactions contemplated Board of Governors of the Federal Reserve System; or
(ii) propose or agree to accept any term or condition or otherwise modify the terms of this Agreement, including, for the avoidance of doubt, the terms or the amount of any Equity Interests that may be required to be delivered by the Company under this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto Group agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, it will use its reasonable best efforts to to, and cause its Subsidiaries and Affiliates to, (i) cooperate in all respects with each other in connection prepare and file with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references provide to the value of this transaction or alternatives to this transaction) to be given by it toCompany, and consult with each other in advance of any meeting or conference withas applicable, the FTCsuch applications, the DOJ or any other Governmental Entity orreports, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity filings or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted documents or information by or with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, Group and Seller its Subsidiaries and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action Affiliates as may be necessary reasonably required in order for the Company to resolve such objections, if any, as comply with applicable Law or the FTC, the DOJ, state antitrust enforcement authorities or competition authorities requirements of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to any action, transaction or approval sought by the transactions contemplated by this Agreement so as Company, and (ii) otherwise reasonably cooperate with the Company with respect to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date)such action, in each case as may be required in order to avoid the entry oftransaction, or to effect the dissolution ofapproval, any injunctionapplication, temporary restraining order report, filing or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a wholedocument.
(fd) Subject to Section 5.7(e), in the event The Company agrees that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and it will use its respective reasonable best efforts to, and cause its Subsidiaries and Affiliates to, (i) prepare and file with any applicable Governmental Entity, or provide to contest and resist any Group, as applicable, such action or proceeding and to have vacatedapplications, liftedreports, reversed or overturned any decree, judgment, injunction filings or other order, whether temporary, preliminary documents or permanent, that is in effect and that prohibits, prevents information by or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations Company and permits sought its Subsidiaries and Affiliates as may be reasonably required in order for Group to be obtained from third parties (other than from comply with applicable Law or the requirements of any Governmental Entities) (“Third Party Consents”), the costs paid to any third party Entity with respect to Third Party Consents shall be borne 50% any action, transaction, Transfer or approval sought by Seller Group, and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, (ii) otherwise reasonably cooperate with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party Group with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided furthersuch action, that this obligation shall survive Closingtransaction, approval, application, report, filing or other document.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Capital One Financial Corp)
Regulatory Matters. (a) Subject Parent, Merger Sub and the Company shall cooperate in preparing, and the Company shall, as soon as practicable, file (after providing Parent and Merger Sub with a reasonable opportunity to review and comment thereon) preliminary proxy materials (including, without limitation, a Schedule 13E-3 filing, if required to be filed under the Exchange Act) relating to the terms Company Meeting (together with any amendments thereof or supplements thereto, the "Proxy Statement") with the SEC and conditions shall use its commercially reasonable efforts to respond to any comments of this Agreementthe SEC (after providing Parent and Merger Sub with 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 promptly 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 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 or the transactions contemplated hereby. The Company will cause the Proxy Statement (other than portions relating to Parent or 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 Proxy Statement and the solicitation of proxies for the Company Meeting (including any requirement to amend or supplement the Proxy Statement). Merger Sub and Parent shall cooperate with the Company in the preparation of the Proxy Statement. Parent and Merger Sub will cause those portions of the Proxy Statement 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 Proxy Statement. Without limiting the generality of the foregoing, each party shall furnish to the other such 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. Each of the Company, Parent and Merger Sub 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 the Proxy Statement and 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 fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any statement which, at the time and 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. 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, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement; provided, that no such amendment or supplement to the Proxy Statement will be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon.
(b) Subject to Section 6.01(a) hereof and without limiting its rights under Section 8.01(h) hereof, the Company shall include in the Proxy Statement the recommendation of the Company's Board of Directors that the stockholders of the Company adopt this Agreement.
(c) The parties hereto shall cooperate with each other and use its their commercially reasonable best efforts to take, or cause to be taken, promptly prepare and file all actionsnecessary documentation, to fileeffect all applications, or cause notices, petitions and filings, to be filedobtain as promptly as practicable all permits, consents, approvals and authorizations of all documents third parties and to do, or cause to be done, all things necessary, proper Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreementhereby, including preparing and filing as promptly as practicable to comply fully with the terms and conditions of all documentation to effect all necessary filingssuch permits, consents, waivers, approvals, authorizations, permits or orders from all third parties and Governmental Entities, including all amendments to materials previously filed that are necessary to reflect changes in this Agreement from the Initial Agreement.
(b) Each of Buyers and Seller shall, upon request, furnish to the other all information concerning itself (or in the case of Seller, the Companies), its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Buyers, Seller, the Companies, or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof (and in any event within 5 business days) and to make, or cause to be made, the filings and authorizations, if any, required under any other Regulatory Laws as promptly as reasonably practicable after the date hereof and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.7 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act or any other Regulatory Laws as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall request and shall use reasonable best efforts to obtain early termination of the waiting period under the HSR Act.
(d) Each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall, in connection with the efforts referenced in Section 5.7(c) to obtain all requisite approvals and authorizations for of all such Governmental Entities; provided that Parent and Merger Sub shall not be obligated to agree to any Burdensome Condition (as defined below). Parent, the transactions contemplated by this AgreementCompany and Merger Sub shall, use its reasonable best efforts to (i) cooperate in all respects with the extent practicable, consult each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable legal limitations and the instructions of any Governmental Entity, keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity and of any communication received or given in connection with any proceeding by a private partyon, in each case regarding any of the transactions contemplated hereby; and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, permit the other party to review in advance any communication (provided that the parties may redact references laws relating to the value exchange of this transaction or alternatives to this transaction) to be given by it toinformation, and consult with each other in advance of any meeting or conference with, all the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and information relating to the extent permitted by the FTCCompany, the DOJ Merger Sub or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(c) and 5.7(d), if any objections are asserted with respect to the transactions contemplated hereby under any Law or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Buyers, on the one hand, and Seller and the Companies, on the other hand, shall use their reasonable best efforts to (x) take, or cause to be taken, all other actions and (y) do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if anyParent, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable (and in any event no later than the End Date), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided that neither the Companies nor any of their Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Companies or any of their Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Companies only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Section 5.7 or elsewhere in this Agreement, Buyers shall not be required to agree to or accept (but in their discretion may agree to or accept), and Seller shall not, and shall not permit the Companies, without the prior written consent of Buyers, to, agree to or accept, unless requested to do so by Buyers (subject to the proviso to the immediately preceding sentence) any condition sought by any Governmental Entity or other person in connection with any consent or approval required to complete or otherwise in connection with the transactions contemplated by this Agreement that (A) seeks to prohibit or limit in any material respect the ownership or operation by the Companies, their Subsidiaries, either Buyer or any of their Affiliates of the business or assets of any of them, or to compel the Companies or either Buyer or any of their Affiliates to dispose of or hold separate any significant portion of their business or assets as a result of the transactions contemplated hereby, (B) seeks to impose limitations on the ability of either Buyer to acquire, hold, or exercise full rights of direct or indirect ownership of the Companies or any of their Subsidiaries, including the right to vote the capital stock of the Companies on all matters properly presented to the shareholders of the Companies and the rights to declare or pay dividends on any capital stock of the Companies or any of their Subsidiaries, (C) seeks to prohibit either Buyer or any of its Subsidiaries from effectively controlling in any material respect the business or operations of such Buyer, the Companies or any of their respective Subsidiaries and their Affiliates, (D) would individually or in the aggregate reasonably be expected to significantly and adversely affect the benefits, taken as a whole, that either Buyer reasonably expects to derive from the consummation of the transactions contemplated by this Agreement or (E) would individually or in the aggregate reasonably be expected to significantly and adversely affect the business, financial condition or results of operations of the Companies and their Subsidiaries, taken as a whole.
(f) Subject to Section 5.7(e), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the transactions contemplated by this Agreement, or any other agreement contemplated hereby, Seller and Buyers each shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(g) Each of Buyers and Seller and the Companies shall promptly advise the other upon receiving any communication from any Governmental Entity the consent or approval of which is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any requisite Regulatory Approval will not be obtained or that the receipt of any such approval may be materially delayed.
(h) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.7(a), (d), (e) or (f), with respect to the consents, waivers, approvals, authorizations and permits sought to be obtained from third parties (other than from Governmental Entities) (“Third Party Consents”), the costs paid to any third party with respect to Third Party Consents shall be borne 50% by Seller and 50% by Buyers. To the extent that a party seeking a Third Party Consent is unable to obtain such Third Party Consent for anything necessary, proper or advisable to consummate the transactions contemplated by this Agreement, such party shall obtain acceptable alternative arrangements, with the other party’s participation, cooperation and approval; provided, that the costs paid to any third party with respect to obtaining any acceptable alternative arrangement shall be borne 50% by Seller and 50% by Buyers; provided further, that this obligation shall survive Closing.
(i) As used in this Agreement, the term “Regulatory Laws” means any Law enacted by any Governmental Entity relating to antitrust matters, insurance, or regulating competition.case
Appears in 1 contract
Samples: Merger Agreement (Bancwest Corp/Hi)
