Required Actions. (a) Purchaser and the Sellers shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, a response in compliance with such
Appears in 1 contract
Required Actions. (a) Seller and Purchaser will, and the Sellers shall will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby.
(b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, its Affiliates or the Business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of the Parties’ covenants and agreements under Section 5.5(a) and Section 5.5(b), but subject to the limitations of Section 5.5(d), the Parties shall, and shall cause their respective Affiliates to, take, or cause to be taken, any and all actions, steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, any and all undertakings solely with respect to the Companies or the Business necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals, so as to enable the Closing to occur as promptly as practicable, including, solely with respect to the Companies or the Business, (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets of the Companies or the Business, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (D) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing, in each case as may be required in order to obtain the Required Regulatory Approvals or to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s obligations under this Section 5.5.
(d) Notwithstanding the foregoing or anything else in this Agreement to the contrary: (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing; (ii) except as set forth in Section 5.5(d) of the Seller Disclosure Letter, Seller shall not be required to, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller or any of its Affiliates (other than the Companies) or any of their respective businesses (other than the Business) (a “Seller Burdensome Condition”); and (iii) neither Purchaser nor Parent shall, including in connection with obtaining the Required Regulatory Approvals, (A) be required to consent to the imposition of any terms conditions or limitations on or with respect to Parent, Purchaser or any of their Affiliates (other than, from and after consultation with the Closing, the Companies) or any of their respective businesses (other parties than, from and after the Closing, the Business) or (B) be required to this Agreementpropose, negotiate, commit to or effect, by consent decree, hold separate orders, or otherwise regarding, the sale, divestiture, license or disposition, in whole or in part of, or suffer any restriction on the operation of the assets, properties or businesses of Parent or its Affiliates (other than, from and after the Closing, the Business) (the foregoing clause (iii), a response in compliance with such“Purchaser Burdensome Condition”).
Appears in 1 contract
Required Actions. (a) Subject to any different standard expressly set forth herein with respect to any covenant or agreement of the parties hereto, Purchaser and the Sellers Seller shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most an expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under the HSR Act or any other Competition Regulatory Laws) required to be obtained or made by Purchaser or the Sellers Seller or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary Agreement or otherwise become applicable to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers Seller and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, and shall use reasonable best effort to not (and shall cause each of their respective Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) prevent, materially delay or impede the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary Regulatory Approvals required to be obtained at or prior made by Purchaser or Seller or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, materially delay or impede the Closingconsummation of the transactions contemplated by this Agreement.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers Seller shall each keep the others reasonably other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental EntityRegulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.26.4, to the extent not prohibited by applicable Law, each of Seller and Purchaser and the Sellers shall promptly consult with each the other party to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and Agreement, the transactions contemplated herebyby this Agreement. Subject to the Confidentiality Agreement and Section 5.26.4, to the extent not prohibited by applicable Law, Purchaser and Seller each party to this Agreement shall promptly inform the other parties party to this Agreement, and if in writing, furnish the other parties party with copies of (or, in the case of oral communications, advise the other parties orally party of) any substantive communication from any Governmental Entity or other such Person regarding the transactions contemplated by this Agreement, and permit the other parties party to review and discuss reasonably in advance, and consider in good faith the views of the other parties party in connection with, any proposed written or oral communication communication, correspondence or submission with or to any such Governmental EntityEntity or other such Person. If any party to this Agreement or any representative Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties party to this Agreement, a an appropriate response in compliance with suchsuch request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any substantive meeting with any Governmental Entity in connection with this Agreement or the transactions contemplated hereby, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the transactions contemplated hereby, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.5, and the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product.
(c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than ten (10) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws.
(d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under any Regulatory Laws; provided, however, notwithstanding anything in this Agreement to the contrary it is expressly understood and agreed that neither Purchaser nor any of its Subsidiaries or Affiliates shall be under any obligation to: (a) litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, or (b) make proposals, execute or carry out agreements or submit to orders providing for (i) the sale, divestiture or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Purchaser, any of its Affiliates or the Company, or the holding separate of shares of capital stock of the Company, (ii) the imposition of any limitation on the ability of Purchaser or any of its Affiliates to freely conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of shares of capital stock of the Company, or (iii) any modification or waiver of the terms and conditions of this Agreement, (c) otherwise agree to any course of conduct (or refrain from taking any action) with respect to, any assets, rights, product lines, businesses, properties, divisions or operations, or, in each case, any interests therein, of Purchaser or such Affiliates, or the Business, and further that the Company or Seller shall in no event agree or commit to (or cause any of its Subsidiaries (including the Transferred Entities) to agree or commit to) to any of the actions described in the foregoing without the prior written consent of Purchaser.
(e) Whether or not the Sale is consummated and, if the Sale is consummated, whether before, at or after the Closing, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.5, other than the fees of and payments to Seller’s legal and professional advisors.
Appears in 1 contract
Samples: Stock Purchase Agreement (Limelight Networks, Inc.)
Required Actions. (a) Subject to the terms and conditions of this Agreement, Purchaser and the Sellers Parent shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most an expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers Parent or any of their respective Affiliates Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, subject to the terms and conditions of this Agreement, each of the Sellers Parent and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, and shall use reasonable best effort efforts not to not take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers Parent shall each keep the others other reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and, subject to the terms and conditions of this Agreement, work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.26.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser and the Sellers shall promptly consult with each the other party to provide any reasonably necessary information with respect to (and, in the case of correspondence, provide the other parties party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement Agreement, the Sale and the other transactions contemplated herebyby this Agreement. Subject to the Confidentiality Agreement and Section 5.26.2, to the extent not prohibited by applicable Law, Purchaser and Seller each party to this Agreement shall promptly inform the other parties party to this Agreement, and if in writing, furnish the other parties party with copies of (or, in the case of oral communications, advise the other parties orally party of) any material communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other parties party to review and discuss in advance, and consider in good faith the views of the other parties party in connection with, any proposed written or oral communication or submission with or to any such Governmental EntityEntity or other such Person. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties party to this Agreement, a an appropriate response in compliance with suchsuch request. Purchaser, on one hand, and Parent, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Competition Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Parent may, as each deems in good faith to be advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns.
(c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, no later than ten (10) Business Days after the date of this Agreement, any other filings and/or notifications (or where applicable, drafts thereof) required under applicable Competition Laws provided that Parent supplies the information required to be provided by it for the filings reasonably in advance of the filing deadline.
(d) Subject to the terms and conditions of this Agreement, Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale and the other transactions contemplated by this Agreement under any Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur.
(f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.
Appears in 1 contract
Required Actions. (a) Seller and Purchaser will, and the Sellers shall will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to take(i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond as promptly as practicable to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of Seller and Purchaser will make, or cause to be takenmade, all actions, an appropriate filing of a Notification and Report Form pursuant to do, or cause the HSR Act with respect to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by hereby with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event within ten (10) Business Days of executing this Agreement. Purchaser shall be responsible for any filing fees required under the HSR Act.
(b) Purchaser and Seller, including (i) acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and filing making of all formsany applications and filings (including the content, registrations terms and notices required to be filed to consummate conditions of such applications and filings) with any Governmental Entity, the transactions contemplated by this Agreementresolution of any investigation or other inquiry of any Governmental Entity, (ii) taking all actions reasonably necessary to obtain (the process for obtaining any consents, registrations, approvals, permits and cooperating with each other in obtaining) any consent, clearance, expiration or termination authorizations of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing including the Required Regulatory Approvals), and the making or discussing of any and all information required under the HSR Act or proposals relating to any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this AgreementAgreement (including the Required Regulatory Approvals); provided, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closinghowever, to the fullest extent not prohibited practicable and permitted by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consentsany communications, clearancesmeetings or other contacts, expirations oral or terminations of waiting periodswritten, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement , each of Seller and Section 5.2, to the extent not prohibited by applicable Law, Purchaser shall (and Seller shall promptly will cause its Affiliates to): (i) inform the other parties Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to this Agreementmake, including the subject matter, contents, intended agenda and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and if in writing, furnish to take into account the comments of the other parties Party in connection with any of the matters covered by Section 5.5(a); (iii) permit Representatives of the other Party to participate in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from all written communications with any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties relating to review and discuss in advance, and consider in good faith the views any of the other parties foregoing; provided further, however, Purchaser shall have the principal responsibility, in connection withconsultation with the Company, for determining and implementing the strategy for obtaining any proposed written necessary clearance, consents, approvals, or oral communication waiting period expirations or submission with or terminations pursuant to any such Governmental Entity. If any party to this Agreement antitrust, competition or any representative of such party receives a request for additional information or documentary material from trade regulation Law that may be asserted by any Governmental Entity with respect to the transactions contemplated under this Agreement and shall do so in a manner reasonably designed to obtain any such antitrust-related Required Regulatory Approvals as promptly as reasonably practicable and, in any event prior to the Outside Date. Materials shared by and among the Purchaser, Seller and Company pursuant to this Section 5.5(b) may be redacted (A) to remove references concerning the valuation of the Business, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with legal requirements and (D) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this AgreementSection 5.5. In furtherance of and without limiting any of Purchaser’s covenants and agreements under this Section 5.5, then such party will use reasonable best efforts Purchaser shall, and shall cause its Affiliates to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals so as to enable the Closing to occur as promptly as practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) in the case of Purchaser, proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business of Purchaser, its Affiliates or the Company, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (D) otherwise taking or committing to take actions that, after consultation the Closing Date, would limit Purchaser’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, one or more of the businesses, product lines or assets of the Company as may be required by a Governmental Entity or agreeing to any other parties action in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing, and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this AgreementAgreement to the contrary, the entry into any settlement with any Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments (including any preliminary offer relating to such settlement, filing or publication) regarding a response Required Regulatory Approval of any Party or their Affiliates must be approved by Purchaser and, to the extent involving a concession or commitment made by any member of the Seller Group, (excluding the Company), Seller.
(d) Notwithstanding the foregoing or anything else in compliance this Agreement to the contrary, (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with suchobtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller, any of its Affiliates or any of their respective businesses, other than terms, conditions or limitations on or with respect to the Company or the Business that are conditional upon the occurrence of the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Chesapeake Utilities Corp)
Required Actions. (a) Purchaser and the Sellers shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation using reasonable best efforts to prepare and filing of file all forms, registrations registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking using reasonable best efforts to take all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other applicable Competition LawsLaws or with respect to any other Required Approval) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement, and (iii) the execution using reasonable best efforts to execute and delivery of deliver any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, and shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers each party shall promptly consult with each the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement Agreement, the Sale and the other transactions contemplated herebyby this Agreement. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller each party to this Agreement shall promptly inform the other parties party to this Agreement, and if in writing, furnish the other parties party with copies of (or, in the case of oral communications, advise the other parties orally party of) any communication from any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and permit the other parties party to review and discuss in advance, and consider in good faith the views of the other parties party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties party to this Agreement, a an appropriate response in compliance with suchsuch request. Neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to the HSR Act or any other applicable Competition Laws or Required Approvals in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other parties the opportunity to attend and participate thereat, unless such Governmental Entity objects, provided, however, that if a Governmental Entity objects to such other party’s participation in the meeting or conversation, the party or parties that do participate in the meeting or conversation shall inform the other parties or parties that such a meeting or conversation took place and shall provide a reasonably detailed summary of such meeting or conversation. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Purchaser and the Sellers may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials and any materials provided by Purchaser to the Sellers or by the Sellers to Purchaser pursuant to this Section 5.3, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or the Sellers, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns.
(c) Purchaser and the Sellers shall file or cause to be filed, (i) the required notifications under the HSR Act and with respect to the Required Approval as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, and (ii) any other filings and/or notifications required under any applicable Competition Laws, whether in draft or final form, as promptly as practicable. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the HSR Act or any other applicable Competition Laws, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process.
(d) Purchaser and the Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale and the other transactions contemplated by this Agreement under the HSR Act and any other applicable Competition Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of the HSR Act or any other applicable Competition Laws, Purchaser and the Sellers shall jointly (to the extent practicable) use their reasonable best efforts to initiate and/or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions necessary to avoid or eliminate each and every impediment under the HSR Act or any other applicable Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall and, if requested by Purchaser, the Sellers shall (but, subject to Purchaser’s obligations under this Agreement, including this Section 5.3, if not so requested by Purchaser, the Sellers shall not), agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s or the Sellers’ respective Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, neither the Purchasers nor the Sellers shall be obligated to take or agree or commit to take any action (A) that is not conditioned on the Closing or (B) that relates to the Retained Businesses.
(f) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose consent or approval is sought in connection with the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 5.3, other than the fees of and payments to the Sellers’ respective legal and professional advisors.
Appears in 1 contract
Required Actions. (a) Purchaser Subject to the terms and the Sellers shall conditions of this Agreement, each party hereto will use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate this Agreement and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation Applicable Law and filing of all forms, registrations and notices required to be filed regulations to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (Merger and cooperating with each the other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action as soon as practicable after the date of this Agreement that would reasonably hereof, including preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and obtaining as promptly as practicable all the Company Approvals, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be expected to delay the obtaining of, or result in not obtaining, obtained from any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (collectively, the “Required Approvals”). The Company shall take all necessary steps, in consultation with Parent, including the Company’s making the necessary payments and incurring the obligations, fees, costs and expenses required to obtain the relevant consents and approvals referred to on Section 4.01(d)(3) of the Company Disclosure Letter (the “Contract Consents”) at or immediately prior to the Closing in the manner indicated thereon. With regard to Company Costs, only 50% of the first $750,000 of payments, obligations (determined at their fair net present value), fees, costs and expenses incurred or assumed by the Company to obtain the Contract Consents at Closing, including payments required to be obtained at made by the Company pursuant thereto after the Closing and payments to settle or prior finally resolve any third party Claims with respect thereto (all such fees, costs, expenses and payments, the “Consent Costs”), incurred by the Company in order to obtain the Contract Consents shall be included as Company Costs and in the Company Actual Expense Amount with 100% of Consent Costs in excess of $750,000 being Company Costs and included in the Company Actual Expense Amount. Notwithstanding the foregoing the Company will not be obligated to incur in the aggregate more than $1,125,000 of Consent Costs in order to obtain the Contract Consents unless Parent requires such and in connection therewith Parent agrees that, except as provided in Section 8.01(j), with respect to Consent Costs in excess of $1,125,000, none of such Consent Costs in excess of $1,125,000 will be Company Costs such that, by way of example, if the Consent Costs were $1.5 million only $750,000 of such Consent Costs would be Company Costs and included in the Company Actual Expense Amount, calculated as follows: (50% x $750,000) + ($1,125,000 - $750,000). The Company shall not be obligated to make any payment or incur any obligations, fees, costs or expenses payable to a third party (other than attorneys’ fees, and costs of experts and other litigation costs) in connection therewith, except in connection with the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers The parties shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement cooperate and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement the actions referenced in Section 6.04(a) to obtain all Required Approvals. In particular, the Company shall (1) furnish as promptly as reasonably practicable to Parent any information concerning the Company and the transactions contemplated hereby. Subject to the Confidentiality Agreement its business, properties and Section 5.2personnel as Parent may reasonably request, to the extent not prohibited in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreementa private party, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of2) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties Parent to review and discuss in advance, and consider in good faith the views all of the other parties Parent’s reasonable comments in connection with, any proposed written or oral communication or submission with or to between it and any such Governmental Entity. If In addition, each party shall (i) promptly inform the other party of (and supply to the other party) any party to this Agreement communication (or any representative of other correspondence or memoranda) received by such party receives a request for additional information from, or documentary material from given by such party to, any Governmental Entity and of any material communication received or given in connection with any proceeding by or meeting with a private party, in each case regarding any of the transactions contemplated hereby, and (ii) consult with the other party in advance, to the extent practicable and not prohibited by law, of any meeting or conference with any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by any applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings and conferences. In furtherance and not in limitation of the foregoing, Parent and the Company agree that notwithstanding anything to the contrary in this Agreement, Parent and the Company shall, to the maximum extent permitted by Applicable Law, cooperate in all meetings and communications with any Governmental Entity in connection with any Antitrust Laws, including by determining the appropriate timing of any such meeting or communication (including (x) the timing of the submission of any filing with, or response to any request by, a Governmental Entity, and (y) the timing of any action taken pursuant to Section 6.04(c)) such that the requisite approvals are obtained prior to the Termination Date.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.04(a) and 6.04(b), the Company and Parent shall, to the extent permitted by Applicable Law, use commercially reasonable efforts to share information, take consistent positions and include one another in all communications to and meetings and discussions with third parties relating to any Claims arising under the Antitrust Laws in connection with this Agreement and/or the transactions contemplated herein subject to such party not compromising an applicable privilege. Notwithstanding the foregoing, nothing contained in this Agreement shall be construed so as to require Parent or Merger Sub, or any of their respective Subsidiaries or Affiliates, to sell, license, dispose of, or hold separate, or to operate in any specified manner, any assets or businesses of Parent, Merger Sub or the Company (or to require Parent or Merger Sub or any of their respective Subsidiaries or Affiliates to agree to any of the foregoing). The obligations of each party under Section 6.04(a) to use commercially reasonable efforts with respect to antitrust matters shall be limited to compliance with its obligations under this Section 6.04(c).
(d) Each party hereto and its respective Board of Directors shall, if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated hereby, take all reasonable action necessary to ensure that the Merger and the other transactions contemplated by this Agreement, then Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such party will use reasonable best efforts to make, statute or cause to be made, promptly and after consultation with the other parties to regulation on this Agreement, a response in compliance with suchthe Merger and the other transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Iomed Inc)
Required Actions. (a) Purchaser and the Sellers The Parties shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most an expeditious manner possible the transactions contemplated by this AgreementTransactions, including (i) the preparation and filing of all forms, registrations and notices required known to be filed to required consummate the transactions contemplated by this AgreementTransactions, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a any waiting period, authorization, Order order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all necessary information required under the HSR Act or any other Competition Antitrust Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this AgreementTransactions, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement Transactions and to fully carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser Parties shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best effort to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws necessary to fulfill all satisfy the closing conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, set forth in Article III and shall use reasonable best effort to not take any action after prior to the date of this Agreement Closing Date that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, the Purchaser and the Sellers Company shall each keep the others reasonably other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement Transactions and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2Agreement, to the extent not prohibited by applicable Law, each of the Purchaser and the Sellers Company, on behalf of itself and the other XXXX Entities, and the Seller Parties, shall promptly consult with each the other Parties to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and or the transactions contemplated herebyTransactions. Subject to the Confidentiality Agreement and Section 5.2Agreement, to the extent not prohibited by applicable Law, the Purchaser and Seller the Company shall promptly inform the other parties to this AgreementParty, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this AgreementTransactions, and permit the other parties Party to review and discuss in advance, and consider in good faith the views of the other parties Party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement Party or any its representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this AgreementTransactions, then such party Party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this AgreementParties, a an appropriate response in compliance with suchsuch request. Except as otherwise required by applicable Law, no Party shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Transactions, or with any other Person in connection with any Proceeding by a private party relating to any Antitrust Laws in connection with this Agreement or the Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other Parties in advance and, to the extent not prohibited by such Governmental Entity or applicable Law, gives the other Parties the opportunity to attend and participate thereat. Each of the Purchaser and the Company, as each deems advisable and necessary, may reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by the Parties to each other pursuant to this Section 7.4, and the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal
(c) The Purchaser and the Company shall file or cause to be filed, as promptly as practicable, but in any event no later than 5 Business Days after the date of this Agreement, notifications under the HSR Act.
(d) The Purchaser, the Company, on behalf of itself and the other XXXX Entities, and the Seller Parties shall cooperate with each other to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under any Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade.
(e) The Purchaser shall be responsible for and shall pay all filing and other similar fees to any Governmental Entity that are payable in connection with any filings or submissions under the HSR Act. (f) Each of the Purchaser and the Company, on behalf of itself and the other XXXX Entities, and each Seller Party covenants and agrees that, from the Agreement Date through the earlier of the Closing or the termination of this Agreement, such Party shall not take any action that would reasonably be expected to prevent, delay or impede the consummation of the Transactions.
Appears in 1 contract
Samples: Equity Purchase Agreement (Insight Enterprises Inc)
Required Actions. (a) Purchaser Purchaser, Everest, Olympus and Trango (and for the Sellers purpose of this Section 7.6, references to Trango, shall to the extent any other Seller is requested, requisitioned or otherwise required by a Governmental Entity to participate in any of the following, include any such other Seller) shall use its reasonable best efforts endeavors to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this AgreementSale, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated Sale or otherwise required by any Party or any of its Affiliates under applicable Law in relation to this AgreementAgreement or the Sale, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order Order, confirmation of non-objection or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under applicable Laws, including Antitrust Laws, and in connection with the HSR Act or any other Competition LawsRegulatory Approvals) required or advisable to be obtained or made by Purchaser Purchaser, Everest, Olympus or the Sellers any Seller or any of their respective Affiliates in connection with this Agreement or the transactions contemplated by this AgreementSale, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement Sale and to fully carry out the purposes of this Agreement. Additionally, each of the Sellers Purchaser, Everest, Olympus and Purchaser Trango shall use its reasonable best efforts endeavors to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws Law to fulfill fulfil all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser Purchaser, Everest, Olympus and the Sellers Trango shall each keep the others reasonably other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement Sale and work cooperatively in connection with obtaining all required or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, Orders Orders, confirmations of non-objection or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.27.5, to the extent not prohibited by applicable Law, Purchaser each of Purchaser, Everest, Olympus and the Sellers Trango shall promptly consult with each other to provide any necessary or reasonably requested information with respect to (and, in the case of correspondence, provide the each other parties (or their counsel) copies of) all filings made by such party Party with any Governmental Entity or any other information supplied by such party Party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated herebySale. Subject to the Confidentiality Agreement and Section 5.27.5, to the extent not prohibited by applicable Law, Purchaser each of Purchaser, Everest, Olympus and Seller Trango shall promptly inform the other parties to this Agreementeach other, and if in writingthe case of written communication, furnish the each other parties with copies of (or, in the case of oral communications, advise the each other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this AgreementSale, and permit the each other parties to review and discuss in advance, and consider in good faith the each other’s views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party Party to this Agreement or any representative of such party Party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this AgreementSale, then such party will use reasonable best efforts to Party shall make, or cause to be made, promptly and after consultation with the other parties to this AgreementPurchaser, a Everest and Olympus, an appropriate response in compliance with suchsuch request. No Party shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action, inquiry, audit, notice of violation, summons, subpoena or investigation by a private party relating to any applicable Antitrust Laws in connection with this Agreement or the Sale or to the Regulatory Approvals, or make oral submissions at meetings or in telephone or other conversations, unless it consults with each other Party in advance and, to the extent not prohibited by such Governmental Entity, gives each other Party the opportunity to attend and participate thereat, provided, that a Party may communicate with a Governmental Entity in the ordinary course regarding the status of any pending Regulatory Approval without providing advance notice to each other Party (except where such communication includes a material update to a Governmental Entity), but shall thereafter provide a copy of the communication to such other Parties. Subject to the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each Party shall furnish Purchaser, Everest and Olympus with copies of all correspondence, filings, submissions and communications between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale, and furnish Purchaser, Everest and Olympus with such necessary information and reasonable assistance as Purchaser, Everest or Olympus, as applicable, may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and Olympus, and consistent with its obligations hereunder, have principal discretion in devising and implementing the strategy for obtaining Regulatory Approvals, including making the final determination as to whether and when to submit any voluntary or discretionary notifications or filings in connection with this Agreement or the Sale under any Antitrust Law to Governmental Entities in any of the jurisdictions where the net revenue of Purchaser for the fiscal year 2018 exceeded $10 million (the “Specified Jurisdictions”); provided, that Purchaser shall use its reasonable best endeavours to expedite the conclusion of any investigation of the Sale under any Antitrust Law; provided, further, that none of Everest, Olympus or any of their respective Subsidiaries or any director of Everest, Olympus or any of their respective Subsidiaries shall be obligated to make or refrain from making any notification or filing to any Governmental Entity in circumstances where they believe (acting reasonably) it would be a breach of their obligations under applicable Law to make or refrain from making (as the case may be) such notification or filing. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and Olympus, and consistent with its obligations hereunder, have principal discretion in determining the form and content of, and when to submit, any applications, notifications or filings in relation to a Regulatory Approval and any of the notifications set forth in the column headed “Pre-completion Notice Required” at of Section 7.6(b) of the Olympus Disclosure Schedule (each, a “Regulatory Notification”). Purchaser, Everest and Olympus may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Agreement as “outside counsel only”, “outside antitrust counsel only”, “outside regulatory counsel only” or “outside counsel/corporate in-house antitrust and regulatory counsel only.” Such designated materials and any materials provided by Purchaser, Everest or Olympus pursuant to this Section 7.6, and the information contained therein, shall be given only to the designated legal counsel of the recipient and shall not be disclosed to any other Person unless express permission is obtained in advance from the source of the materials (Purchaser, Everest or Olympus, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of Everest and/or Olympus, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns. 119
(c) Purchaser, Everest and Olympus shall file or cause to be filed (as applicable) (i) any filings and/or notifications required under applicable Antitrust Laws or in connection with the Regulatory Approvals, (ii) the Regulatory Notifications and (iii) any voluntary or discretionary notifications or filings as promptly as practicable, but in any event any final notifications or, where a draft must be filed prior to the final notification, initial draft notifications of any other filings shall be submitted no later than the earlier of the applicable statutory deadline and 20 Business Days after the date of this AgreementEffective Date (unless the applicable notification or filing is not required to be made until after the Closing). In the event that Purchaser, Everest or Olympus receives a request for additional information or documentary materials after an initial notification pursuant to any applicable Antitrust Law or in connection with any of the Regulatory Approvals, the applicable Party shall use its respective reasonable endeavors to certify compliance with such requests, as applicable, as promptly as practicable and advisable, and counsel for the Parties shall closely cooperate during the entirety of any such investigatory or review process.
(d) Each of Purchaser, Everest and Olympus shall use its reasonable endeavors to resolve as promptly as practicable such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale under any applicable Antitrust Laws or in connection with any of the Regulatory Approvals. In connection therewith, if any Action, inquiry, audit, notice of violation, summons, subpoena or investigation is instituted (or threatened to be instituted) challenging the Sale as violative of any applicable Laws, Purchaser, Everest and Olympus shall jointly (to the extent practicable) use their respective reasonable endeavors to initiate and/or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to prevent or enjoin the consummation of the Sale and/or (ii) take such action as necessary to overturn any regulatory Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to block consummation of the Sale, including by defending any such Action, inquiry, audit, notice of violation, summons, subpoena or investigation brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale resulting from any such Action, inquiry, audit, notice of violation, summons, subpoena or investigation.
(e) In furtherance of the foregoing, Purchaser shall take all actions necessary to avoid or eliminate each and every impediment under any Antitrust Laws and in connection with any of the Regulatory Approvals so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of Everest, Olympus and their respective Affiliates and (ii) otherwise taking or committing to take actions that after the Closing would limit Everest’s, Olympus’s or any of their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of Everest, Olympus or their respective Affiliates. In that regard Purchaser shall and, if requested by Purchaser, Everest or Olympus shall (but, subject to each Party’s obligations under this Agreement, including this Section 7.6, and if not so requested by Purchaser shall not), agree to take any action with respect to the Everest Business or the Olympus Business, including agreeing to or otherwise effecting any sale, divestiture, license, hold separate arrangement, or any limitation or restriction on the freedom of action with respect to such businesses and assets; provided, that Purchaser shall not be obligated to take or agree or commit to take, and neither Everest nor Olympus shall discuss, propose, agree or commit to take, any such action that is not conditioned on the Closing. No actions taken pursuant to this Section 7.6(e) shall be considered for purposes of determining whether a Material Adverse Effect has occurred or may occur. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Purchaser be obligated to, and Everest and Olympus shall not agree with a Governmental Entity without the prior written consent of Purchaser, to (A) divest, hold separate, license, or otherwise encumber the assets or businesses of Everest, Olympus or their respective Affiliates if such actions, individually or in the aggregate, would be material to the financial condition, business or results of operations of Everest and its Subsidiaries, taken as a whole, or material to the financial condition, business or results of operations of Olympus and its Subsidiaries, taken as a whole, or (B) divest, hold separate, license, accept any operational modification or restriction with respect to or otherwise encumber the assets or businesses of Purchaser or its Subsidiaries.
Appears in 1 contract
Samples: Deed (WEX Inc.)
Required Actions. (a) Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Sellers Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject - 46 - matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section 5.5, each of Purchaser and Seller shall, and shall cause their respective Affiliates to use reasonable best efforts to take, or cause to be taken, any and all actions, steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals, in each case, so as to enable the Closing to occur as promptly as practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition or Seller Burdensome Condition, and proposing alternative conditions upon which the Required Regulatory Approvals would be provided, (D) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of (1) with respect to Purchaser, any assets or business of Purchaser or its Affiliates or of the Company, and (2) with respect to Seller, any Unregulated Non-Retail Business, in each case, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned, any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed - 47 - between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s obligations under this Section 5.5.
(d) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Purchaser nor any of its Affiliates shall be required to, and neither Seller nor the Company nor any of their respective Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to, or take any action, in each case, that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of Purchaser and its Affiliates (including the Company), taken as a whole, after consultation giving effect to the Sale; provided, that Purchaser and its Affiliates (including the Company) shall be deemed to be the same size as the Company for purposes of this Section 5.5(d) (any such action or requirement, a “Purchaser Burdensome Condition”); and provided further, any regulatory mitigation action taken by Purchaser in connection with the transactions contemplated by the Plants EIPA or any mitigation ordered relating directly to the transactions contemplated by the Plants EIPA shall not be taken into account in the determination of whether there has been a Purchaser Burdensome Condition. For the avoidance of doubt, none of the exclusions set forth in the definition of “Company Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section 5.5(d).
(e) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Seller nor any of its Affiliates shall be required to, and neither Purchaser nor any of its Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other parties investigation, consent to, or take any action, in each case, that, (i) would require Seller or any of its Affiliates (other than the Company) to commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business, other than any assets or business of the Unregulated Non-Retail Business, (ii) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of Seller’s remaining electric businesses, other than the Unregulated Non-Retail Business, taken as a whole, after giving effect to the Sale; provided, that for the purposes of this clause (ii) such remaining electric businesses shall be deemed to be the same size as the Company; (iii) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of the Unregulated Non-Retail Business, taken as a whole; provided, that for the purposes of this clause (iii) the Unregulated Non-Retail Business shall be deemed to be the same size as the Company, or (iv) individually or in the aggregate, would have a material adverse effect on the manner in which the remaining transmission or generation assets of Seller or any of its Affiliates are operated, including a change in control over such operations (any such action or requirement in (i), (ii), (iii) or (iv), a “Seller Burdensome Condition”); and provided, further, that none of the obligations of Seller or any of its Affiliates set forth in or contemplated by the Ancillary Agreements (in, for the avoidance of doubt, the forms attached to this Agreement), the matters set forth in Section 5.20 or the matters set forth in Section 5.20(a)(ii) of the Seller Disclosure Letter shall be taken into account in the determination of whether there has been a response Seller Burdensome Condition. - 48 - (f) Notwithstanding the foregoing or anything else in compliance this Agreement to the contrary, neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with suchobtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement
Required Actions. (a) Seller and Purchaser will, and the Sellers shall will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. - 41 - (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, its Affiliates or the Business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of the Parties’ covenants and agreements under Section 5.5(a) and Section 5.5(b), but subject to the limitations of Section 5.5(d), the Parties shall, and shall cause their respective Affiliates to, take, or cause to be taken, any and all actions, steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, any and all undertakings solely with respect to the Companies or the Business necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals, so as to enable the Closing to occur as promptly as practicable, including, solely with respect to the Companies or the Business, (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or - 42 - delay the consummation of the Closing, (C) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets of the Companies or the Business, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (D) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing, in each case as may be required in order to obtain the Required Regulatory Approvals or to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s obligations under this Section 5.5.
(d) Notwithstanding the foregoing or anything else in this Agreement to the contrary: (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing; (ii) except as set forth in Section 5.5(d) of the Seller Disclosure Letter, Seller shall not be required to, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller or any of its Affiliates (other than the Companies) or any of their respective businesses (other than the Business) (a “Seller Burdensome Condition”); and (iii) neither Purchaser nor Parent shall, including in connection with obtaining the Required Regulatory Approvals, (A) be required to consent to the imposition of any terms conditions or limitations on or with respect to Parent, Purchaser or any of their Affiliates (other than, from and after consultation with the Closing, the Companies) or any of their respective businesses (other parties than, from and after the Closing, the Business) or (B) be required to this Agreementpropose, negotiate, commit to or effect, by consent decree, hold separate orders, or otherwise regarding, the sale, divestiture, license or disposition, in whole or in part of, or suffer any restriction on the operation of the assets, properties or businesses of Parent or its Affiliates (other than, from and after the Closing, the Business) (the foregoing clause (iii), a response in compliance with such“Purchaser Burdensome Condition”).
Appears in 1 contract
Samples: Equity Interest Purchase Agreement
Required Actions. (a) Purchaser and the Sellers its Affiliates, including, if applicable, its UPE, and Parent shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things actions necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser (and, if applicable, its UPE) or the Sellers Parent or any of their respective Affiliates Subsidiaries in connection with the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement.
(b) Purchaser (and, if applicable, its UPE) and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser Parent shall use reasonable best efforts to take, file or cause to be takenfiled, any filings (including draft filings) or notifications under applicable Competition and Foreign Investment Laws within the timeframes set out in Section 8.1(a) of the Parent Disclosure Schedule. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to any Competition and Foreign Investment Laws, the parties shall use their respective best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories or other information on a rolling basis. Purchaser and its Affiliates, including, if applicable, its UPE, shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated hereby or by the Ancillary Agreements or any filing made pursuant to any Competition and Foreign Investment Laws unless Parent has given its prior written consent to such extension or delay or withdrawal.
(i) Purchaser shall control all actionscommunications with any Governmental Entity relating to Competition and Foreign Investment Laws, and to dodetermine and direct the strategy and process by which the parties will obtain all required consents, clearances, expirations or cause to be doneterminations of waiting periods, all things necessaryauthorizations, proper Orders or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval approvals of, or any exemption exemptions by, any Governmental Entity necessary relating to be obtained at Competition and Foreign Investment Laws; provided that Purchaser covenants and agrees to consider in good faith all comments of Parent (or as appropriate Parent’s outside counsel) with respect to filings, submissions and communications prior to delivery of the Closingsame to any Governmental Entity. Without limiting the foregoing, the parties agree to the matters set forth on Section 5.3(c)(i) of the Purchaser Disclosure Schedule.
(bii) Prior Without limiting the generality of Section 5.3(c)(i), prior to the Closing, to the extent not prohibited by applicable Law, Parent and Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and (A) work cooperatively with the other party in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counselB) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreementparty, and if in writing, furnish the other parties party with copies of (or, in the case of oral communications, advise the other parties orally party of) any communication from any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and (C) permit the other parties party to review and discuss in advance, and consider in good faith the views of the other parties party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If , and (D) not participate in any meeting with any Governmental Entity in connection with this Agreement, the Sale or the other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to any Competition and Foreign Investment Laws in connection with this Agreement, the Sale or the other transactions contemplated by this Agreement or any representative make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and gives the other party the opportunity to attend and participate thereat.
(iii) Any disclosures, provisions of information or rights to participate by one party to the other party under this Section 5.3 may be made on a counsel-only basis, to the extent such party receives a request for additional deems it advisable and necessary, and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be). Such designated disclosures or information may be redacted (A) to remove references concerning the valuation of the Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchaser and their respective Affiliates, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or documentary material from confidentiality concerns.
(d) Purchaser and its Affiliates and Parent shall use their respective best efforts to take the actions set forth in this Section 5.3(d) to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement under any Competition and Foreign Investment Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Pre-Closing Restructuring, the Sale or the other transactions contemplated by this Agreement as violative of any Competition and Foreign Investment Laws, Purchaser, its Affiliates and Parent shall initiate and/or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement, then including by defending any such party will use reasonable best efforts Action brought by any Governmental Entity in order to makeavoid the entry of, or cause to be madehave vacated, promptly and after consultation with overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Pre-Closing Restructuring, the Closing or the other parties transactions contemplated by this Agreement resulting from any such Action.
(e) In furtherance of the undertakings in this Section 5.3, but except as set forth on Section 5.3(e) of the Purchaser Disclosure Schedule, Purchaser and Parent shall take all actions necessary to avoid or eliminate each and every impediment under any Competition and Foreign Investment Laws so as to enable the Pre-Closing Restructuring and the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, (ii) amending any joint venture or other arrangement of the Transferred Entities and (iii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities or Purchaser’s other Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities. No actions taken pursuant to this Agreement, Section 5.3(e) shall be considered for purposes of determining whether a response in compliance with suchBusiness Material Adverse Effect has occurred or may occur.
Appears in 1 contract
Required Actions. (a) Purchaser Upon the terms and subject to the conditions set forth in this Agreement, each of Purchaser, Seller and the Sellers Company shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws and to consummate assist and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection cooperate with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be doneother parties in doing, all things necessary, proper or advisable under any applicable Laws to fulfill consummate and make effective, in the most expeditious manner practicable, the Transactions, including:
(i) obtaining in the most expeditious manner practicable all conditions precedent necessary actions or nonactions, Consents, Governmental Authorizations and Orders (including with respect to this Agreement andthe HSR Approval and the Required Regulatory Approvals, unless otherwise required by Law or but subject to Section 6.02(b) and Section 6.02(c), as applicable) from Governmental Entities in connection with the authorization, execution, delivery, performance and consummation of this Agreement, shall use reasonable best effort the Ancillary Documents and the Transactions;
(ii) vigorously defending any lawsuits or other legal proceedings, whether regulatory, judicial, administrative or other, to not take which it is a party challenging or affecting this Agreement, the Ancillary Documents or the Transactions (including all regulatory proceedings necessary or advisable in connection with obtaining the HSR Approval and the Required Regulatory Approvals) or seeking to prohibit or delay the consummation of the Transactions or rescind, vacate, or otherwise challenge any action Orders granted;
(iii) seeking to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions;
(iv) as promptly as practicable, and in any event within 90 days after the date of hereof or such later date as Seller and Purchaser may agree, making or causing to be made all necessary notifications, applications and filings (including with respect to the HSR Approval and the Required Regulatory Approvals), and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement Agreement, the Ancillary Documents and the Transactions required under or with respect to the HSR Approval and the Required Regulatory Approvals; provided, however, that would reasonably be expected to delay Seller, the obtaining Company and Purchaser shall cooperate with each other in connection with determining whether any action by or in respect of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption byfiling with, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively is required in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to Transactions (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity including with respect to the transactions HSR Approval and the Required Regulatory Approvals) and seeking any such actions, consents, approvals or waivers or making any such filings;
(v) Seller using its reasonable best efforts, including paying reasonable consent fees, if necessary, to obtain the amendments contemplated by Section 7.03(c) in such a form as would satisfy the condition contained in Section 7.03(c); and
(vi) executing and delivering any additional instruments necessary to consummate the Transactions and fully carry out the purposes of this Agreement, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, a response in compliance with such.
Appears in 1 contract
Required Actions. (a) Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of Seller and Purchaser will make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event by June 4, 2018.
(b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Sellers Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section 5.5, each of Purchaser and Seller shall, and shall cause their respective Affiliates to use reasonable best efforts to take, or cause to be taken, any and all actions, steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from any Governmental Entity regarding the transactions contemplated by this Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then such party will use reasonable best efforts to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals, including avoiding or eliminating any Purchaser Burdensome Condition, so as to enable the Closing to occur as promptly as practicable, including
(A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition, and after consultation proposing alternative conditions upon which the Required Regulatory Approvals would be provided, (D) in the case of Purchaser, proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business of Purchaser or its Affiliates or of the Company, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with any Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates must be approved by Purchaser and, to the extent involving a concession or commitment made by Seller or any of its Affiliates (excluding the Company), Seller.
(d) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Purchaser nor any of its Affiliates shall be required to, and neither Seller nor the Company nor any of their respective Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other parties investigation, consent to this Agreementor take any action in each case, that would reasonably be expected to have, individually or in the aggregate, a response material adverse effect on the business, assets, results of operations or financial condition of Purchaser and its Affiliates (including the Company) taken as a whole, after giving effect to the Sale; provided, that Purchaser and its Affiliates (including the Company) shall be deemed to be the same size as the Business for purposes of this Section 5.5(d) (any such action or requirement, a “Purchaser Burdensome Condition”). For the avoidance of doubt, none of the exclusions set forth in compliance the definition of “Business Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section 5.5(d).
(e) Notwithstanding the foregoing or anything else in this Agreement to the contrary, (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with suchobtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller, any of its Affiliates or any of their respective businesses, other than terms, conditions or limitations on or with respect to the Company (excluding the Elizabethtown Gas and Elkton Gas operating divisions of the Company) or the Business.
Appears in 1 contract
Required Actions. (a) Purchaser Subject to the terms and conditions of this Agreement, each of the parties shall use its reasonable best efforts to consummate and make effective, as soon as reasonably possible, the Transactions, including the Merger.
(b) Without limiting Section 6.03(a), Parent and the Sellers Parent Board and the Company and the Company Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.
(c) Parent shall take reasonable best efforts to obtain the expiration or early termination of the HSR Act waiting period, including but not limited to (i) jointly proposing with the Company to negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license, or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of, any portion of the business, properties or assets of Parent, the Company or any of their respective Subsidiaries, (ii) terminating, modifying, or assigning existing relationships, contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) changing or modifying any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise taking or committing to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates' freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement (collectively, a "Divestiture Action"); provided that Parent or any Parent Subsidiaries are not obligated to take any Divestiture Action or other action unless such action is expressly conditioned upon and is only effective after the Closing of the Merger and such action would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Parent and its Subsidiaries from and after the Effective Time, taken as a whole. The Company shall agree to take any Divestiture Action requested by Parent if such actions are only effective after the Effective Time and conditioned upon the consummation of the Merger. In the event that any Divestiture Action is proposed by or acceptable to a Governmental Entity, Parent shall have the right to determine the manner in which to implement the requirement of such Governmental Entity; provided, that in no event shall Parent or the Company (or any of their respective Subsidiaries or other Affiliates) be required to take or effect any such action that is not conditioned upon the consummation of the Merger; provided, further, that Parent shall consult with the Company and give consideration to the views of the Company on all matters relating to any possible Divestiture Action.
(d) In addition, if any action or Proceeding is instituted (or threatened) challenging the Merger or any other transaction contemplated by this Agreement as violating any antitrust, competition, foreign investment, trade regulation or similar Law or if any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Merger or any other transaction contemplated by this Agreement illegal or otherwise delay or prohibit the consummation of the Merger or any other transaction contemplated by this Agreement, Parent, its Affiliates and Subsidiaries and the Company, its Affiliates and Subsidiaries, shall use reasonable best efforts to take(subject the limitations set forth in Section 6.03(c)) contest and defend any such Claim, cause of action, or Proceeding to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded, or terminated, any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) that prohibits, prevents, or restricts consummation of the Merger or any other transaction contemplated by this Agreement. Parent shall be entitled to direct any such action or Proceeding described in this Section 6.03(d); provided, however, that it shall afford the Company a reasonable opportunity to participate therein.
(e) Without limiting the generality of the foregoing, each of Parent and the Company shall:
(i) make or cause to be takenmade, all actions, in consultation and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection cooperation with the transactions contemplated by this Agreement, other and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action as promptly as practicable after the date of this Agreement that would reasonably be expected to delay the obtaining ofAgreement, or result in not obtaining, any consent, clearance, expiration or termination an appropriate filing of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior Notification and Report Form pursuant to the Closing.HSR Act relating to the Merger;
(bii) Prior use its reasonable best efforts to furnish to the Closingother all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the effects set forth in Section 6.03(b);
(iii) give the other reasonable prior notice of any such registration, declaration, notice, application or filing and, to the extent not prohibited by applicable Lawreasonably practicable, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from with any Governmental Entity regarding the transactions contemplated by Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)), and permit the other parties to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other parties in connection withwith any such registration, any proposed written declaration, notice, filing, application or oral communication or submission with or communication;
(iv) use its reasonable best efforts to respond as promptly as practicable under the circumstances to any such inquiries received from any Governmental Entity. If any party to this Agreement Entity or any representative of such party receives a request other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for additional information or documentary material from documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a "second request" under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to consummate any of the Transactions, except with the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed;
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the transactions contemplated by actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)) without the other, then such party will use reasonable best efforts (B) to makethe extent reasonably practicable, or cause to be made, promptly and after consultation with give the other parties reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation or a communication is initiated by a Governmental Entity without advance notice, keep the other party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, Parent papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity's staff, on the other hand, with respect to this AgreementAgreement and the Merger, a response in compliance with suchprovided that each party may designate information as "outside counsel only," and the receiving party agrees to instruct its counsel not to disclose such information to its client.
Appears in 1 contract
Required Actions. (a) Purchaser Subject to the terms and conditions of this Agreement, each of the parties shall use its reasonable best efforts to consummate and make effective, as soon as reasonably possible, the Transactions, including the Merger.
(b) Without limiting Section 6.03(a), Parent and the Sellers Parent Board and the Company and the Company Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.
(c) Parent shall take reasonable best efforts to obtain the expiration or early termination of the HSR Act waiting period, including but not limited to (i) jointly proposing with the Company to negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license, or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of, any portion of the business, properties or assets of Parent, the Company or any of their respective Subsidiaries, (ii) terminating, modifying, or assigning existing relationships, contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) changing or modifying any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise taking or committing to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement (collectively, a “Divestiture Action”); provided that Parent or any Parent Subsidiaries are not obligated to take any Divestiture Action or other action unless such action is expressly conditioned upon and is only effective after the Closing of the Merger and such action would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Parent and its Subsidiaries from and after the Effective Time, taken as a whole. The Company shall agree to take any Divestiture Action requested by Parent if such actions are only effective after the Effective Time and conditioned upon the consummation of the Merger. In the event that any Divestiture Action is proposed by or acceptable to a Governmental Entity, Parent shall have the right to determine the manner in which to implement the requirement of such Governmental Entity; provided, that in no event shall Parent or the Company (or any of their respective Subsidiaries or other Affiliates) be required to take or effect any such action that is not conditioned upon the consummation of the Merger; provided, further, that Parent shall consult with the Company and give consideration to the views of the Company on all matters relating to any possible Divestiture Action.
(d) In addition, if any action or Proceeding is instituted (or threatened) challenging the Merger or any other transaction contemplated by this Agreement as violating any antitrust, competition, foreign investment, trade regulation or similar Law or if any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Merger or any other transaction contemplated by this Agreement illegal or otherwise delay or prohibit the consummation of the Merger or any other transaction contemplated by this Agreement, Parent, its Affiliates and Subsidiaries and the Company, its Affiliates and Subsidiaries, shall use reasonable best efforts to take(subject the limitations set forth in Section 6.03(c)) contest and defend any such Claim, cause of action, or Proceeding to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded, or terminated, any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) that prohibits, prevents, or restricts consummation of the Merger or any other transaction contemplated by this Agreement. Parent shall be entitled to direct any such action or Proceeding described in this Section 6.03(d); provided, however, that it shall afford the Company a reasonable opportunity to participate therein.
(e) Without limiting the generality of the foregoing, each of Parent and the Company shall:
(i) make or cause to be takenmade, all actions, in consultation and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or the Sellers or any of their respective Affiliates in connection cooperation with the transactions contemplated by this Agreement, other and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to carry out the purposes of this Agreement. Additionally, each of the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and, unless otherwise required by Law or this Agreement, shall use reasonable best effort to not take any action as promptly as practicable after the date of this Agreement that would reasonably be expected to delay the obtaining ofAgreement, or result in not obtaining, any consent, clearance, expiration or termination an appropriate filing of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior Notification and Report Form pursuant to the Closing.HSR Act relating to the Merger;
(bii) Prior use its reasonable best efforts to furnish to the Closingother all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the effects set forth in Section 6.03(b);
(iii) give the other reasonable prior notice of any such registration, declaration, notice, application or filing and, to the extent not prohibited by applicable Lawreasonably practicable, Purchaser and the Sellers shall each keep the others reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and the Sellers shall promptly consult with each other to provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the transactions contemplated hereby. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, Purchaser and Seller shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from with any Governmental Entity regarding the transactions contemplated by Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)), and permit the other parties to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other parties in connection withwith any such registration, any proposed written declaration, notice, filing, application or oral communication or submission with or communication;
(iv) use its reasonable best efforts to respond as promptly as practicable under the circumstances to any such inquiries received from any Governmental Entity. If any party to this Agreement Entity or any representative of such party receives a request other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for additional information or documentary material from documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a “second request” under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to consummate any of the Transactions, except with the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed;
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the transactions contemplated by actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)) without the other, then such party will use reasonable best efforts (B) to makethe extent reasonably practicable, or cause to be made, promptly and after consultation with give the other parties reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation or a communication is initiated by a Governmental Entity without advance notice, keep the other party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, Parent papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this AgreementAgreement and the Merger, a response in compliance with suchprovided that each party may designate information as “outside counsel only,” and the receiving party agrees to instruct its counsel not to disclose such information to its client.
Appears in 1 contract
