Clearances. 6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable. 6.2 Except where otherwise required by law or a Relevant Authority, the Bidder shall in good faith: 6.2.1 determine, having consulted the Target in a timely manner, the strategy to be pursued for obtaining the Clearances; and 6.2.2 be responsible for the payment of all filing fees required in connection with the Clearances. 6.3 The parties shall co-operate with each other in relation to the obtaining of any necessary or expedient Clearances and, without prejudice to the generality of the foregoing, shall: 6.3.1 assist each other with the provision of such information and assistance as may be required for: 6.3.1.1 the Bidder to determine in which jurisdictions any merger control, regulatory or other filing, notification or submission with a Relevant Authority is necessary for the purposes of obtaining the Clearances; 6.3.1.2 the Bidder to make any filings, notifications or submissions to Relevant Authorities (and/or to respond to any requests for further information in relation thereto) as are necessary in connection with obtaining the Clearances, taking into account all applicable waiting periods; and 6.3.1.3 the identification, structuring and preparation of any Remedies, if it can reasonably be expected that any will be required to secure a Clearance; 6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances; 6.3.3 assist in the provision, or procuring the provision of, to the other party (and/or its advisers): 6.3.3.1 draft copies of all filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and 6.3.3.2 copies of all filings, notifications, submissions, material correspondence and material communications sent or submitted to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communications, reasonably detailed summaries of such correspondence or communications; 6.3.4 have regard in good faith to such comments provided by the other party in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable to do so within the applicable deadline or due date; 6.3.5 notify the other party, and provide copies (including, in the case of non-written communications, reasonably detailed summaries of material non-written communications), of any material correspondence or material communication from any Relevant Authority in relation to obtaining any Clearance; 6.3.6 unless prohibited by the Relevant Authority, give the other party and its advisers reasonable notice of (including providing any agendas to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with obtaining the Clearances and allow the other party and its advisers to attend and make reasonable oral submissions during any such material meetings, hearings or telephone calls (provided such oral submissions have been discussed by the parties in advance and to the extent permitted by the Relevant Authority); 6.3.7 each party shall promptly inform the other of the content of any such material meetings or calls with a Relevant Authority to the extent that party was not present; 6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party; 6.3.9 assist in the provision to any Relevant Authority such information as may be reasonably required by such Relevant Authority in connection with any authorisations, clearances or consents required or expedient in the context of the Acquisition; and 6.3.10 if necessary, negotiate with any Relevant Authority in relation to any undertakings, orders or agreements which such Relevant Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakings, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the exchange of any commercially or competitively sensitive information in accordance with the provisions of clause 6.4. 6.4 If a provision of this Clause 6 (Clearances) obliges a party to disclose any information to the other: 6.4.1 which the disclosing party reasonably considers to be commercially or competitively sensitive; 6.4.2 which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or 6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party: 6.4.3.1 pursuant to appropriate confidential information sharing procedures (including clean team agreements and on an external counsel only basis); and 6.4.3.2 where disclosure in a manner contemplated by Clause 6.3.2 would reasonably be expected to have a material adverse effect on the disclosing party’s legitimate business interest, directly to a Relevant Authority (and in such circumstances, the disclosing party shall provide to the other party a redacted version of such information). 6.5 The Bidder undertakes to the Target that until the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member of the Bidder Group shall enter into an agreement for, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearances.
Appears in 1 contract
Sources: Bid Conduct Agreement
Clearances.
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 3.1 Except where otherwise required by law or a Relevant AuthorityLaw, the Bidder shall in good faithBarrick shall:
6.2.1 determine(a) jointly with Randgold, having consulted the Target in a timely manner, determine the strategy to be pursued or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
6.2.2 (ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all filing fees required in connection with obtaining the ClearancesClearances to satisfy any Regulatory Condition or to complete the COMESA filing.
6.3 The parties shall co-operate with each other 3.2 Subject to clause 3.1, Barrick shall:
(a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the obtaining of Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or expedient advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances and, without prejudice required in relation to the generality Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the foregoingClearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and (f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
6.3.1 assist (a) provide to each other with the provision of other, in a timely manner, such information and assistance as may be required for:
6.3.1.1 (i) the Bidder parties to determine in which jurisdictions any merger control, regulatory or other filing, notification notification, submission or submission engagement with a Relevant Government Authority is necessary or advisable for the purposes of obtaining the Clearances;
6.3.1.2 (ii) the Bidder parties to make any filings, notifications or submissions to Relevant the Government Authorities (and/or to respond to any requests for further information in relation thereto) as are necessary in connection with the obtaining the of Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
6.3.1.3 (iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) the identification, structuring and preparation of any Remedies, if it can reasonably be expected and that any will be required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist is in the provisionpossession of, or procuring the provision of, to the other party (and/or its advisers):
6.3.3.1 draft copies of all filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 copies of all filings, notifications, submissions, material correspondence and material communications sent or submitted to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communications, reasonably detailed summaries of such correspondence or communications;
6.3.4 have regard in good faith to such comments provided by the other party in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable to do so within the applicable deadline or due date;
6.3.5 notify the other party, and provide copies (including, in the case of non-written communications, reasonably detailed summaries of material non-written communications), of any material correspondence or material communication from any Relevant Authority in relation to obtaining any Clearance;
6.3.6 unless prohibited by the Relevant Authority, give the other party and its advisers reasonable notice of (including providing any agendas to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with obtaining the Clearances and allow the other party and its advisers to attend and make reasonable oral submissions during any such material meetings, hearings or telephone calls (provided such oral submissions have been discussed obtainable by the parties in advance and to the extent permitted by the Relevant Authority);
6.3.7 each party shall promptly inform the other of the content of any such material meetings or calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to from third parties through the generality exercise of the foregoing where reasonably required, jointly attending meetings and conference callscontractual rights) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision to any Relevant Authority such information as may be reasonably required by such Relevant Authority in connection with any authorisations, clearances or consents required or expedient in the context of the Acquisition; and
6.3.10 if necessary, negotiate with any Relevant Authority in relation to any undertakings, orders or agreements which such Relevant Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakings, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that the co-operation will be conducted in a manner as promptly as reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the exchange of any commercially or competitively sensitive information in accordance with the provisions of clause 6.4practicable.
6.4 If a provision of this Clause 6 (Clearances) obliges a party to disclose any information to the other:
6.4.1 which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party:
6.4.3.1 pursuant to appropriate confidential information sharing procedures (including clean team agreements and on an external counsel only basis); and
6.4.3.2 where disclosure in a manner contemplated by Clause 6.3.2 would reasonably be expected to have a material adverse effect on the disclosing party’s legitimate business interest, directly to a Relevant Authority (and in such circumstances, the disclosing party shall provide to the other party a redacted version of such information).
6.5 The Bidder undertakes to the Target that until the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member of the Bidder Group shall enter into an agreement for, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearances.
Appears in 1 contract
Clearances.
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 3.1 Except where otherwise required by law or a Relevant AuthorityLaw, the Bidder shall in good faithBarrick shall:
6.2.1 determine(a) jointly with Randgold, having consulted the Target in a timely manner, determine the strategy to be pursued or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
6.2.2 (ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all filing fees required in connection with obtaining the ClearancesClearances to satisfy any Regulatory Condition or to complete the COMESA filing.
6.3 The parties shall co-operate with each other 3.2 Subject to clause 3.1, Barrick shall:
(a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the obtaining of Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or expedient advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances and, without prejudice required in relation to the generality Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the foregoingClearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
6.3.1 assist (a) provide to each other with the provision of other, in a timely manner, such information and assistance as may be required for:
6.3.1.1 (i) the Bidder parties to determine in which jurisdictions any merger control, regulatory or other filing, notification notification, submission or submission engagement with a Relevant Government Authority is necessary or advisable for the purposes of obtaining the Clearances;
6.3.1.2 (ii) the Bidder parties to make any filings, notifications or submissions to Relevant the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods;
(and/or iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to respond any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) the identification, structuring and preparation of any Remedies, and that is in the possession of, or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall:
(a) not offer or agree to any Remedies without the express written approval of Barrick;
(b) subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and
(c) in relation theretoto any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger.
3.5 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7:
(a) Barrick, Randgold or Barrick and Randgold jointly, as are necessary may be required by Law, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this Agreement;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with obtaining the preparation of all such filings, notifications, submissions or engagements referred to in clause 3.5(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods; and
6.3.1.3 the identification, structuring and preparation of any Remedies, if it can reasonably be expected that any will be required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist in the provision(d) each party shall provide, or procuring procure the provision of, to the other party (and/or its advisers):
6.3.3.1 draft copies of all filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party Communications (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 copies of all filings, notifications, submissions, material correspondence and material communications sent or submitted to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communicationsCommunications, reasonably detailed summaries of the material non-written Communications) intended to be sent or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such correspondence time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or communicationsmade, save that, in the case of Randgold and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made;
6.3.4 have regard (e) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications);
(f) each party shall consider in good faith to such comments provided made in a timely manner by the other party in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable on draft copies of Communications provided pursuant to do so within the applicable deadline or due dateclause 3.5(d);
6.3.5 (g) each party shall notify the other party, and provide copies (including, in the case of material non-written communicationsCommunications, reasonably detailed summaries of the material non-written communicationsCommunications), in a timely manner, of any material correspondence Communication from or material communication from with any Relevant Government Authority in relation to obtaining the Merger or any Clearance;
6.3.6 (h) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Relevant Authority, give the other party Government Authority or Law) relating to any Clearance; and its advisers reasonable notice of (including providing any agendas ii) to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with obtaining the Clearances and allow the other party and its advisers to attend and make reasonable oral submissions during any at such material meetingsmeetings or calls; and
(i) where reasonably requested by a party, hearings or telephone calls (provided such oral submissions have been discussed by the parties in advance and to the extent insofar as permitted by a Government Authority, the Relevant Authority);
6.3.7 each other party shall promptly inform the other of the content of any such material make available appropriate representatives for meetings or and calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision to any Relevant Authority such information as may be reasonably required by such Relevant Government Authority in connection with any authorisationsClearances.
3.6 Each party undertakes to keep the other party informed promptly of: (a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction of the Regulatory Conditions.
3.7 Subject to clause 3.1, clearances each party undertakes not to:
(a) submit a filing, submission or consents notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or expedient determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(c) other than as required by Law to be paid in the context respect of the Acquisition; and
6.3.10 if necessaryany filing, negotiate with any Relevant Authority in relation submission or notification to any undertakings, orders or agreements which such Relevant Government Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy be made by it pursuant to the terms of this clause 3, make any Condition) provided that this Clause 6.3.10 shall not require payment of any party to agree amount to any such undertakingsGovernment Authority in connection with the Merger, orders or agreements, in each case ensuring all such informationcase, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that without the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit prior written consent of the exchange of any commercially or competitively sensitive information in accordance with the provisions of clause 6.4other party.
6.4 3.8 If a provision of this Clause 6 (Clearances) Agreement obliges a party the parties to disclose any information to the other:
6.4.1 other which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party:
6.4.3.1 party pursuant to appropriate confidential information sharing procedures clean team arrangements (including clean team agreements and on an external counsel only basis); and
6.4.3.2 where disclosure in a manner contemplated by Clause 6.3.2 would reasonably be expected to have a material adverse effect on the disclosing party’s legitimate business interest, directly to a Relevant Authority (and in such circumstances, ) or as the disclosing party shall provide to and the other party a redacted version of such information)may otherwise agree.
6.5 The Bidder undertakes to the Target that until the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member of the Bidder Group shall enter into an agreement for, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearances.
Appears in 1 contract
Sources: Cooperation Agreement
Clearances.
6.1 The Bidder 3.1 Apex undertakes to work co-operatively and reasonably with Sanne and its advisers to satisfy the Target Regulatory Conditions and take such actions in respect of the Regulatory Conditions and certain other regulatory matters as soon as reasonably practicable following the date of this Agreement, and in particular:
(a) to take make as promptly as practicable such submissions, filings or notifications (including in draft where applicable) with the relevant Relevant Authority as are necessary or expedient for the implementation of the Acquisition; and
(b) to provide as promptly as practicable such information as the relevant Relevant Authority may reasonably require for the purposes of making a submission, filing or notification to any Relevant Authority.
3.2 Each party undertakes to co-operate with the other party in relation to the Clearances and each party, subject to clause 3.9 and 3.10 below, undertakes to use all reasonable steps necessary endeavours to secure or to assist to secure (as the case may be) the Clearances as soon as is reasonably practicablepracticable following the date of this Agreement and in any event in sufficient time to enable the Effective Date to occur by the Longstop Date.
6.2 3.3 Except where otherwise required by law Law or a Relevant Authority, the Bidder Apex shall in good faith:
6.2.1 determine, having consulted the Target in a timely manner, the strategy to be pursued for obtaining the Clearances; and
6.2.2 be responsible for the payment of all filing fees required in connection with the Clearances.
6.3 The parties shall co-operate with each other in relation 3.4 Save to the obtaining of any necessary extent prohibited by Law or expedient Clearances and, without prejudice to the generality of the foregoing, shallRelevant Authority:
6.3.1 assist each other with (a) Sanne undertakes to Apex that it shall provide as soon as reasonably practicable, following any request for the provision of same, such information and assistance as may be reasonably required for:
6.3.1.1 the Bidder (i) Apex to determine determine, in consultation with Sanne, in which jurisdictions any merger control, regulatory or other filing, notification or submission with a Relevant Authority is may be necessary or expedient for the purposes of obtaining the Clearances;
6.3.1.2 the Bidder to make (ii) any filings, notifications or submissions that Apex (acting reasonably and having consulted Sanne) considers are necessary to be made to the Relevant Authorities (and/or to respond to any requests for further information in relation thereto) as are necessary in connection with the obtaining of the Clearances, taking into account all applicable waiting periods, or for inclusion in any responses to any requests for further information consequent upon such filings, notifications or submissions; and
6.3.1.3 the identification, structuring and preparation of any Remedies, if it can (iii) all such other assistance as may reasonably be expected that any will be required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist Clearances (including assistance in connection with such pre- notification contacts with the Relevant Authorities as Apex and Sanne agree (each acting reasonably) are desirable or appropriate in the provisioncircumstances); and
(b) each party undertakes to the other to ensure that all information necessary for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions (including draft versions necessary for the purpose of obtaining the Clearances) or that is otherwise required for the purposes of obtaining the Clearances, and that is in the possession of, or procuring is reasonably obtainable by such party (including from third parties through the reasonable exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.5 For the purposes of clause 3.4, the parties acknowledge that:
(a) a party shall not be in breach of clause 3.4 as a consequence of any inaccuracies in any information originating from a third party (being a person other than a member, officer or employee of the party's Group);
(b) such information and assistance will be supplied in a manner reasonably designed to preserve applicable legal professional privilege; and
(c) the provision of information is subject to clause 3.9.
3.6 Except to the extent that to do so is prohibited by Law and subject to clause 3.9:
(a) Apex to the extent required and reasonably considered necessary or, as may be required by applicable Law, Sanne and Apex jointly, or as reasonably required by Sanne, Sanne (as the case may be) shall submit any draft filing, filing, notification or submission (as required) to each Relevant Authority in connection with obtaining the Clearances, subject to each party complying in full with the obligation in clause 3.6(b), as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time period where it is necessary or expedient to do so to obtain the Clearances;
(b) each party shall provide in a timely manner such cooperation as is reasonably required by the other party in connection with the preparation of all such filings, notifications or submissions (as required) referred to in clause 3.6(a) and in relation to the preparation of any other submissions, material correspondence or material communications to any Relevant Authority in connection with the Clearances (including at the pre-notification stage);
(c) each party shall provide, or procure the provision of, draft copies of all notifications, filings, submissions, material correspondence and material communications (including, in the case of material non-written communications, reasonably detailed summaries of such communications) intended to be sent or communicated to any Relevant Authority in relation to obtaining any Clearances (including at the pre-notification stage) to the other party (and/or and its advisers):
6.3.3.1 draft copies of all legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 made and each party shall provide the other party with copies of all such filings, submissions, material correspondence and material communications in the form finally submitted or sent (including, in the case of material non-written communications, reasonably detailed summaries of such communications);
(d) each party shall have regard in good faith to comments made in a timely manner by the other party on draft copies of filings, notifications, submissions, material correspondence and material communications sent or submitted provided pursuant to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communications, reasonably detailed summaries of such correspondence or communicationsclause 3.6(c);
6.3.4 have regard in good faith to such comments provided by the other (e) each party in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable to do so within the applicable deadline or due date;
6.3.5 shall notify the other party, and provide copies (including, in the case of material non-written communications, reasonably detailed summaries of material non-written such communications), in a timely manner of any material correspondence or material communication received from any Relevant Authority in relation to obtaining any ClearanceClearance (including at the pre-notification stage);
6.3.6 (f) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.6(a) and will reasonably consider requests by the other party and/or its advisers:
(i) to attend any meeting or material call with any Relevant Authority or other persons or bodies (unless prohibited by the Relevant Authority, give Law or other person or body) relating to obtaining any Clearance (including at the pre- notification stage); and
(ii) to make reasonable oral submissions at any such meeting or call; and
(g) where reasonably requested by a party, and insofar as permitted by the Relevant Authority, the other party shall make available appropriate representatives for meetings and its advisers reasonable notice of (including providing any agendas to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with the obtaining of any Clearances (including at the Clearances and allow pre-notification stage).
3.7 Each party undertakes to keep the other party and its advisers informed as soon as reasonably practicable of:
(a) developments which are material or reasonably likely to attend and make reasonable oral submissions during any such be material meetings, hearings or telephone calls (provided such oral submissions have been discussed by the parties in advance and to the extent permitted by obtaining of a Clearance; and
(b) the Relevant Authority);
6.3.7 each party shall promptly inform the other satisfaction or waiver of the content of any such material meetings Regulatory Conditions.
3.8 Each party undertakes not to withdraw a filing, submission or calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision notification made to any Relevant Authority such information as may be reasonably required by such Relevant Authority in connection with any authorisationsobtaining a Clearance without first notifying the other party in advance and seeking input from that other party, clearances or consents required or expedient in the context of the Acquisition; and
6.3.10 if necessary, negotiate with any Relevant Authority in relation such input to any undertakings, orders or agreements which such Relevant Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakings, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking be reasonably taken into account applicable waiting periods)before withdrawing the filing, provided that the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the exchange of any commercially submission or competitively sensitive information in accordance with the provisions of clause 6.4notification.
6.4 3.9 If a provision of this Clause 6 (Clearances) Agreement obliges a party (the disclosing party) to disclose any information to the other:other:
6.4.1 (a) that is personally identifiable information of a director, partner, officer or employee of the disclosing party or any member of its Group or any of their respective affiliates, unless that information can reasonably be anonymised (in which case the disclosing party shall provide the relevant information on an anonymous basis);
(b) which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 (c) which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 (d) where such disclosure would result in the loss of privilege that subsists in relation to it such information (including, without limitation, including legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (shall, to the extent permitted by Applicable Law) , disclose the relevant information information:
(i) to the other party pursuant to appropriate arrangements as may be agreed between the parties to ensure compliance with Law (including, as applicable, competition Law and the practices of any Relevant Authority);
(ii) to the other party:
6.4.3.1 pursuant ’s legal counsel and, to appropriate confidential information sharing procedures (including clean team agreements and the extent reasonably necessary in connection with any competition Clearance, its other advisers on an “external counsel only basisonly” basis (where applicable, in accordance with the requirements of Practice Statement No 30 published by the Panel); andor
6.4.3.2 (iii) where disclosure in a manner contemplated by Clause 6.3.2 this Agreement would reasonably be expected to have a material adverse effect on the disclosing party’s 's legitimate business interest, directly to a Relevant Authority (and in such circumstances, the disclosing party shall provide to the extent reasonably practicable provide, or procure the provision of, to the other party a redacted version of such information).
6.5 The Bidder undertakes 3.10 Notwithstanding any other provision of this Agreement to the Target that until contrary, nothing contained in this Agreement shall require Apex or the Clearances have been obtainedApex Investors (or any person acting in concert or deemed to be acting in concert with Apex) to take, and or cause to be taken, any conditions attached action with respect to the divestiture of assets, properties or businesses of the Apex Group or the Sanne Group or any other company or business which is controlled by funds or entities managed, advised or sub- advised by the Apex Investors or in which any fund or entity managed, advised or sub-advised by the Apex Investors has a direct or indirect interest, or any combination thereof, or agree to any Clearances have been fulfilledconditions, neither it nor measures, commitments or undertakings or any other member limitations on the business of the Bidder Apex Group shall enter into an agreement foror any other company or business which is controlled by funds or entities managed, advised or consummatesub-advised by the Apex Investors or in which any fund or entity managed, any acquisition advised or other transaction that wouldsub-advised by the Apex Investors has a direct or indirect interest, or might reasonably be expected to, have except as otherwise agreed by the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearancesparties.
Appears in 1 contract
Sources: Cooperation Agreement
Clearances.
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 3.1 Except where otherwise required by law Law or a Relevant Government Authority, the Bidder shall in good faithTaptica shall:
6.2.1 determine(a) jointly with RhythmOne, having consulted the Target in a timely manner, determine the strategy to be pursued or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
6.2.2 (ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Taptica and RhythmOne over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition, Taptica may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Taptica Group following the consummation of the Acquisition;
(b) subject to Clause 3.4, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all filing fees required in connection with obtaining the ClearancesClearances to satisfy any Regulatory Condition.
6.3 The 3.2 Subject to Clause 3.1, the parties shall co-operate with each other in relation to the obtaining of any necessary or expedient Clearances and, without prejudice to the generality of the foregoing, shalluse their respective best endeavours:
6.3.1 assist (a) provide to each other with the provision of other, in a timely manner, such information and assistance as may be required for:
6.3.1.1 (i) the Bidder parties to determine in which jurisdictions any merger control, regulatory or other filing, notification notification, submission or submission engagement with a Relevant Government Authority is necessary or advisable for the purposes of obtaining the Clearances;
6.3.1.2 (ii) the Bidder parties to make any filings, notifications or submissions to Relevant the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods;
(and/or iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to respond any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Acquisition; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) the identification, structuring and preparation of any Remedies,
3.3 RhythmOne shall:
(a) not offer or agree to any Remedies without the express written approval of Taptica;
(b) subject to Clause 3.4, not discuss the terms or potential terms of any Remedies without the express written approval of Taptica; and
(c) in relation theretoto any Regulatory Condition, agree to any Remedies (provided that the determination of such Remedies is made in accordance with Clause 3.1) to which Taptica requests RhythmOne to be party to; provided, however, that RhythmOne’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Acquisition.
3.4 Except to the extent that to do so is prohibited by Law and subject to Clauses 3.1 and 3.6:
(a) Taptica, RhythmOne or Taptica and RhythmOne jointly, as are necessary may be required, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances;
(b) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with obtaining the preparation of all such filings, notifications, submissions or engagements referred to in Clause 3.4(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods; and
6.3.1.3 the identification, structuring and preparation of any Remedies, if it can reasonably be expected that any will be required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist in the provision(c) each party shall provide, or procuring procure the provision of, to the other party (and/or its advisers):
6.3.3.1 draft copies of all filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party Communications (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 copies of all filings, notifications, submissions, material correspondence and material communications sent or submitted to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communicationsCommunications, reasonably detailed summaries of the material non-written Communications) intended to be sent or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such correspondence time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or communicationsmade;
6.3.4 have regard (d) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications);
(e) each party shall consider in good faith to such comments provided made in a timely manner by the other party in accordance with on draft copies of Communications provided pursuant to Clause 6.3.3 3.4(c) and shall provide such supporting documentation as are reasonable, and where it is reasonably practicable to do so within the applicable deadline or due dateother party may request;
6.3.5 (f) each party shall notify the other party, and provide copies (including, in the case of material non-written communicationsCommunications, reasonably detailed summaries of the material non-written communicationsCommunications), in a timely manner, of any material correspondence Communication from or material communication from with any Relevant Government Authority in relation to obtaining the Acquisition or any Clearance;
6.3.6 (g) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to Clause 3.4(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall reasonably consider requests by the other party to allow their representatives or advisers nominated: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Relevant Authority, give the other party Government Authority or Law) relating to any Clearance; and its advisers reasonable notice of (including providing any agendas ii) to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with obtaining the Clearances and allow the other party and its advisers to attend and make reasonable oral submissions during any at such material meetings, hearings meetings or telephone calls (provided that such oral submissions have been discussed in advance); and
(h) where reasonably requested by the parties in advance a party, and to the extent insofar as permitted by a Government Authority, the Relevant Authority);
6.3.7 each other party shall promptly inform the other of the content of any such material make available appropriate representatives for meetings or and calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision to any Relevant Authority such information as may be reasonably required by such Relevant Government Authority in connection with any authorisationsClearances.
3.5 Each party undertakes to keep the other party informed promptly of:
(a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction of the Regulatory Conditions.
3.6 Subject to Clause 3.1, clearances each party undertakes not to:
(a) submit a filing, submission or consents notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Taptica and RhythmOne to be appropriate or advisable for the Acquisition to be completed; or
(b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or expedient determined by Taptica and RhythmOne to be appropriate or advisable for the Acquisition to be completed; or
(c) other than as required by Law to be paid in the context respect of the Acquisition; and
6.3.10 if necessaryany filing, negotiate with any Relevant Authority in relation submission or notification to any undertakings, orders or agreements which such Relevant Government Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy any Condition) provided that be made by it pursuant to the terms of this Clause 6.3.10 shall not require 3, make any party to agree payment of any amount to any such undertakingsGovernment Authority in connection with the Acquisition, orders or agreements, in each case ensuring all such informationcase, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that without the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit prior written consent of the exchange of any commercially or competitively sensitive information in accordance with the provisions of clause 6.4other party.
6.4 3.7 If a provision of this Clause 6 (Clearances) Agreement obliges a party the parties to disclose any information to the other:other:
6.4.1 (a) which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 (b) which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 (c) where such disclosure would result in the loss of privilege that subsists in relation to it such information (including, without limitation, including legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party:
6.4.3.1 other: (i) pursuant to appropriate confidential information sharing procedures arrangements as may be agreed between the parties; or (including clean team agreements and on an external counsel only basis); and
6.4.3.2 ii) where disclosure in a manner contemplated by Clause 6.3.2 3.4(a) would reasonably be expected to have a material adverse effect on the disclosing party’s 's legitimate business interest, directly to a Relevant Government Authority (and in such circumstances, the disclosing party shall provide to the other party a redacted non-confidential version of such information).
6.5 The Bidder undertakes 3.8 To the extent that:
(a) RhythmOne provides Taptica with any information, assistance and/or access to RhythmOne's senior management for the Target that until purposes of preparing for and monitoring the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member integration of the Bidder businesses of the Taptica Group shall enter into an agreement forand the RhythmOne Group after the Effective Date (which RhythmOne is under no obligation to provide); or
(b) Taptica provides RhythmOne with any information, or consummateassistance and/or access to Taptica' senior management for the purposes of preparing for and monitoring the integration of the businesses of the Taptica Group and the RhythmOne Group after the Effective Date (which Taptica is under no obligation to provide), any acquisition competitively sensitive information shall be provided pursuant to appropriate arrangements as may be agreed between the parties.
3.9 For the avoidance of doubt, nothing in this Agreement shall oblige Taptica to offer or other transaction that would, agree any Remedy or might reasonably be expected to, have the effect of preventing to waive or delaying the obtaining of the Clearances or the fulfilment of satisfy any conditions attached to any ClearancesRegulatory Condition.
Appears in 1 contract
Sources: Cooperation Agreement
Clearances.
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 Except where otherwise required by law or a Relevant Authority3.1 Bidco, the Bidder shall after having consulted in good faith:
6.2.1 determine, having consulted the Target in faith and on a timely mannerbasis with, and reasonably considering in good faith comments from, IMImobile, shall be responsible for determining the strategy to be pursued for obtaining satisfying the Clearances; andRegulatory Conditions and dealing with any Relevant Authority with respect to the Acquisition (whether for the purpose of satisfying the Regulatory Conditions or otherwise).
6.2.2 3.2 Each party undertakes to co-operate with the other party in relation to the Clearances and each party, subject to clause 3.10 below, undertakes to use all reasonable endeavours to secure or to assist to secure (as the case may be) the Clearances as soon as reasonably practicable following the date of this Agreement and in any event in sufficient time to enable the Effective Date to occur by the Longstop Date.
3.3 Except where otherwise required by Law or a Relevant Authority, Bidco shall be responsible for the payment of all filing fees required in connection with the Clearances.
6.3 The parties shall co-operate with each other in relation 3.4 Save to the obtaining of any necessary extent prohibited by Law or expedient Clearances and, without prejudice to the generality of the foregoing, shallRelevant Authority:
6.3.1 assist each other with 3.4.1 IMImobile undertakes to Bidco that it shall provide as soon as reasonably practicable, following any request for the provision of same, such information and assistance as may be reasonably required for:
6.3.1.1 the Bidder (a) Bidco to determine determine, in consultation with IMImobile, in which jurisdictions any merger control, regulatory or other filing, notification or submission with a Relevant Authority is may be necessary or expedient for the purposes of obtaining the Clearances;
6.3.1.2 the Bidder to make (b) any filings, notifications or submissions that Bidco (acting reasonably and having consulted IMImobile) considers are necessary to be made to the Relevant Authorities (and/or to respond to any requests for further information in relation thereto) as are necessary in connection with the obtaining of the Clearances, taking into account all applicable waiting periods, or for inclusion in any responses to any requests for further information consequent upon such filings, notifications or submissions; and
6.3.1.3 (c) the identificationpurposes of obtaining the Clearances (including assistance in connection with such informal or pre-notification contacts with the Relevant Authorities as ▇▇▇▇▇ considers desirable or appropriate), structuring in all circumstances only to the extent that ▇▇▇▇▇, acting reasonably, requests, having consulted in good faith and preparation on a timely basis with, and reasonably considering in good faith comments from, ▇▇▇▇▇▇▇▇▇; and
3.4.2 each party undertakes to the other to use its best endeavours to ensure that all information necessary for the making of (or responding to any Remediesrequests for further information consequent upon) any such filings, if it can reasonably be expected notifications, submissions (including draft versions necessary for the purpose of obtaining the Clearances) or that any will be is otherwise required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist Clearances, and that is in the provisionpossession of, or procuring is reasonably obtainable by such party (including from third parties through the reasonable exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.5 For the purposes of clause 3.4, the parties acknowledge that:
3.5.1 a party shall not be in breach of clause 3.4 as a consequence of any inaccuracies in any information originating from a third party (being a person other than a member, officer or employee of the party's Group);
3.5.2 legally privileged information does not have to be disclosed unless the disclosing party consents; and
3.5.3 the provision of information is subject to clause 3.9.
3.6 Except to the extent that to do so is prohibited by Law and subject to clause 3.9:
3.6.1 Bidco to the extent required and reasonably considered necessary or, as may be required by applicable Law, IMImobile and Bidco jointly, or as reasonably required by IMImobile, IMImobile (as the case may be) shall submit any draft filing, filing, notification or submission (as required) to each Relevant Authority in connection with obtaining the Clearances, subject to each party complying in full with the obligation in clause 3.6.2, as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time period where it is necessary or expedient to do so to obtain the Clearances;
3.6.2 each party shall provide in a timely manner such cooperation as is reasonably required by the other party in connection with the preparation of all such filings, notifications or submissions (as required) referred to in clause 3.6.1 and in relation to the preparation of any other submissions, material correspondence or material communications to any Relevant Authority in connection with the Clearances (including at the pre-notification stage);
3.6.3 each party shall provide, or procure the provision of, draft copies of all notifications, filings, submissions, material correspondence and material communications (including, in the case of material non-written communications, reasonably detailed summaries of such communications) intended to be sent or communicated to any Relevant Authority in relation to obtaining any Clearances (including at the pre-notification stage) to the other party (and/or and its advisers):
6.3.3.1 draft copies of all legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 made and each party shall provide the other party with copies of all such filings, submissions, material correspondence and material communications in the form finally submitted or sent (including, in the case of material non-written communications, reasonably detailed summaries of such communications);
3.6.4 each party shall have regard in good faith to comments made in a timely manner by the other party on draft copies of filings, notifications, submissions, material correspondence and material communications sent or submitted provided pursuant to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communications, reasonably detailed summaries of such correspondence or communicationsclause 3.6.3;
6.3.4 have regard in good faith to such comments provided by the other 3.6.5 each party in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable to do so within the applicable deadline or due date;
6.3.5 shall notify the other party, and provide copies (including, in the case of material non-written communications, reasonably detailed summaries of material non-written such communications), in a timely manner of any material correspondence or material communication received from any Relevant Authority in relation to obtaining any ClearanceClearance (including at the pre-notification stage);
6.3.6 3.6.6 each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.6.1 and will reasonably consider requests by the other party and/or its advisers: (i) to attend any meeting or material call with any Relevant Authority or other persons or bodies (unless prohibited by the Relevant Authority, give Law or other person or body) relating to obtaining any Clearance (including at the pre-notification stage); and (ii) to make reasonable oral submissions at any such meeting or call; and
3.6.7 where reasonably requested by a party, and insofar as permitted by the Relevant Authority, the other party shall make available appropriate representatives for meetings and its advisers reasonable notice of (including providing any agendas to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with the obtaining of any Clearances (including at the Clearances and allow pre- notification stage).
3.7 Each party undertakes to keep the other party and its advisers informed as soon as reasonably practicable of: (i) developments which are material or reasonably likely to attend and make reasonable oral submissions during any such be material meetings, hearings or telephone calls (provided such oral submissions have been discussed by the parties in advance and to the extent permitted by obtaining of a Clearance; and (ii) the Relevant Authority);
6.3.7 each party shall promptly inform the other satisfaction or waiver of the content of any such material meetings Regulatory Conditions.
3.8 Each party undertakes not to withdraw a filing, submission or calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision notification made to any Relevant Authority such information as may be reasonably required by such Relevant Authority in connection with any authorisationsobtaining a Clearance without first notifying the other party in advance and seeking input from that other party, clearances or consents required or expedient in the context of the Acquisition; and
6.3.10 if necessary, negotiate with any Relevant Authority in relation such input to any undertakings, orders or agreements which such Relevant Authority requires to facilitate the Acquisition (whether or not the consent of that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakings, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking be reasonably taken into account applicable waiting periods)before withdrawing the filing, provided that the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the exchange of any commercially submission or competitively sensitive information in accordance with the provisions of clause 6.4notification.
6.4 3.9 If a provision of this Clause 6 (Clearances) Agreement obliges a party (the "disclosing party") to disclose any information to the other:other:
6.4.1 3.9.1 that is personally identifiable information of a director, partner, officer or employee of the disclosing party or any member of its Group or any of their respective affiliates, unless that information can reasonably be anonymised (in which case the disclosing party shall provide the relevant information on an anonymous basis);
3.9.2 which the disclosing party reasonably considers to be commercially or competitively sensitive;; or
6.4.2 3.9.3 which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (shall, to the extent permitted by Applicable Law) , disclose the relevant information information:
(a) to the other party pursuant to appropriate arrangements as may be agreed between the parties to ensure compliance with Law (including, as applicable, Competition Law and the practices of any Relevant Authority);
(b) where deemed appropriate by the disclosing party, to the other party:
6.4.3.1 pursuant ’s legal counsel and, to appropriate confidential information sharing procedures (including clean team agreements and the extent reasonably necessary in connection with any competition Clearance, its other advisers on an “external counsel only basisonly” basis (where applicable, in accordance with the requirements of Practice Statement No 30 published by the Panel); andor
6.4.3.2 where (c) where, in the sole discretion of the disclosing party, disclosure in a manner contemplated by Clause 6.3.2 this Agreement would reasonably be expected contrary to have a material adverse effect on the disclosing party’s legitimate business 's interest, directly to a Relevant Authority (and in such circumstances, the disclosing party shall provide may to the extent reasonably practicable provide, or procure the provision of, to the other party a redacted version or summary of such information).
6.5 The Bidder undertakes 3.10 Notwithstanding any other provision of this Agreement to the Target that until contrary, nothing contained in this Agreement shall require Bidco (or any person acting in concert or deemed to be acting in concert) to take, or cause to be taken, any action with respect to the Clearances have been obtaineddivestiture of assets, and properties or businesses of the Bidco Group or the IMImobile Group, or any conditions attached combination thereof, or agree to any Clearances have been fulfilledconditions, neither it nor measures, commitments or undertakings or any other member limitations on the business of the Bidder Group shall enter into an agreement forBidco Group, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have except as otherwise agreed by the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearancesparties.
Appears in 1 contract
Sources: Cooperation Agreement
Clearances.
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 3.1 Except where otherwise required by law Law or a Relevant Regulatory Authority, the Bidder shall Bidco, after having consulted in good faith:
6.2.1 determine, having consulted the Target in faith and on a timely mannerbasis with, and reasonably considering comments from, Target, shall be responsible for determining the strategy to be pursued for obtaining satisfying the Clearances; andRegulatory Conditions and dealing with any Regulatory Authority with respect to the Acquisition (whether for the purpose of satisfying the Regulatory Conditions or otherwise).
6.2.2 3.2 Each party undertakes to co-operate with the other party in relation to the Clearances and each party, subject to clause 3.10 below, undertakes to use all reasonable endeavours to secure or to assist to secure (as the case may be) the Clearances as soon as reasonably practicable following the date of this Agreement and in any event in sufficient time to enable the Effective Date to occur by the Longstop Date, provided that Bidco shall not be required to offer, accept, execute or agree (a) any disposal, sale, transfer or divestiture Remedies that relate to any member of the Bidco Group or (b) any Remedies that are adverse to a material extent to the Target Group taken as a whole or the Medical Adhesive Technologies (MAT) business of the Bidco Group, taken as a whole (Regulatory Undertaking Carve-out).
3.3 Without limiting the generality of clause 3.2 above, Bidco shall, subject to the Regulatory Undertaking Carve-out, accept the imposition of, or offer (and not withdraw) and execute, or agree any and all Remedies necessary to obtain the Clearances in sufficient time so as to enable the Effective Date to occur by the Longstop Date.
3.4 Except where otherwise required by Law or a Regulatory Authority, Bidco shall be responsible for the payment of all filing fees required in connection with the Clearances.
6.3 The parties shall co-operate with each other in relation 3.5 Save to the obtaining of extent prohibited by Law or any necessary or expedient Clearances and, without prejudice to the generality of the foregoing, shallRegulatory Authority:
6.3.1 assist each other with (a) Target undertakes to Bidco that it shall provide as soon as reasonably practicable, following any request for the provision of same, such information and assistance as may be reasonably required for:
6.3.1.1 the Bidder (i) Bidco to determine determine, in consultation with Target, in which jurisdictions any merger control, regulatory or other filing, notification or submission with a Relevant Regulatory Authority is may be necessary for the purposes of obtaining the Clearances;
6.3.1.2 the Bidder to make (ii) any filings, notifications or submissions to Relevant Authorities that Bidco (and/or to respond to any requests for further information in relation theretoacting reasonably and having consulted Target) as considers are necessary to be made to the relevant Regulatory Authorities in connection with the obtaining of the Clearances, taking into account all applicable waiting periods, or for inclusion in any responses to any requests for further information consequent upon such filings, notifications or submissions; and
6.3.1.3 (iii) the identificationpurposes of obtaining the Clearances (including assistance in connection with such informal or pre-notification contacts with the Regulatory Authorities as ▇▇▇▇▇ considers desirable or appropriate), structuring in all circumstances only to the extent that ▇▇▇▇▇, acting reasonably, requests, having consulted in good faith and preparation on a timely basis with, and reasonably considering comments from, Target; and
(b) each party undertakes to the other to use all reasonable endeavours to ensure that all information necessary for the making of (or responding to any Remediesrequests for further information consequent upon) any such filings, if it can reasonably be expected notifications, submissions (including draft versions necessary for the purpose of obtaining the Clearances) or that any will be is otherwise required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist Clearances, and that is in the provisionpossession of, or procuring is reasonably obtainable by such party (including from third parties through the reasonable exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.6 For the purposes of clause 3.5, the parties acknowledge that:
(a) a party shall not be in breach of clause 3.5 as a consequence of any inaccuracies in any information originating from a third party (being a person other than a member, officer or employee of the party's Group);
(b) legally privileged information does not have to be disclosed unless the disclosing party consents; and
(c) the provision of information is subject to clause 3.10.
3.7 Except to the extent that to do so is prohibited by Law and subject to clause 3.10:
(a) to the extent required and reasonably considered necessary or, as may be required by applicable Law, Bidco or Target (as the case may be) shall submit any draft filing, filing, notification or submission (as required) to each Regulatory Authority in connection with obtaining the Clearances, subject to each party complying in full with the obligation in clause 3.7(b), as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time period where it is necessary or expedient to do so to obtain the Clearances;
(b) each party shall provide in a timely manner such cooperation as is reasonably required by the other party in connection with the preparation of all such filings, notifications or submissions (as required) referred to in clause 3.7(a) and in relation to the preparation of any other submissions, material correspondence or material communications to any Regulatory Authority in connection with the Clearances (including at the pre-notification stage);
(c) each party shall provide, or procure the provision of, draft copies of all notifications, filings, submissions, material correspondence and material communications (including, in the case of material non-written communications, reasonably detailed summaries of such communications) intended to be submitted, sent or communicated to any Regulatory Authority in relation to obtaining any Clearances (including at the pre-notification stage) to the other party (and/or and its advisers):
6.3.3.1 draft copies of legal advisers at such time as will allow the receiving party a reasonable opportunity, taking into account all relevant circumstances, to provide comments on such filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or communicated to any Relevant Authority in connection with obtaining any Clearance, at such time as will allow the other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions, correspondence and communications before they are submitted, sent or communicated; and
6.3.3.2 made and each party shall provide the other party with copies of all such filings, submissions, material correspondence and material communications in the form finally submitted or sent (including, in the case of material non-written communications, reasonably detailed summaries of such communications);
(d) each party shall have regard in good faith to reasonable comments made in a timely manner by the other party on draft copies of filings, notifications, submissions, material correspondence and material communications sent or submitted provided pursuant to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written correspondence or communications, reasonably detailed summaries of such correspondence or communicationsclause 3.7(c);
6.3.4 have regard in good faith to such comments provided by (e) each party shall notify the other party in accordance with Clause 6.3.3 as are reasonable, (and where it is reasonably practicable to do so within the applicable deadline or due date;
6.3.5 notify the other partyits advisers), and provide copies (including, in the case of material non-written communications, reasonably detailed summaries of material non-written such communications), in a timely manner of any material correspondence or material communication received from any Relevant Regulatory Authority in relation to obtaining any ClearanceClearance (including at the pre-notification stage);
6.3.6 unless prohibited by the Relevant Authority, give (f) each party shall keep the other party (and its advisers reasonable notice advisers) reasonably informed as to the progress of (any filing, notification and submission submitted pursuant to clause 3.7(c), including providing reasonable notice, taking into account all relevant circumstances, of any agendas to the extent available) any planned meetings, hearings or any material telephone calls with any Relevant Regulatory Authority in connection with or other persons or bodies relating to obtaining the Clearances any Clearance and allow will reasonably consider requests by the other party and and/or its advisers advisers: (i) to attend any such meeting, hearing or material call with any Regulatory Authority or other persons or bodies (unless prohibited by any Regulatory Authority, Law or other person or body) relating to obtaining any Clearance (including at the pre-notification stage); and (ii) to make reasonable oral submissions during at any such material meetings, hearings meeting or telephone calls call (provided such oral submissions have been discussed by the parties in advance advance); and
(g) where reasonably requested by a party, and to the extent insofar as permitted by the Relevant relevant Regulatory Authority);
6.3.7 each , the other party shall promptly inform the other of the content of any such material make available appropriate representatives for meetings or and calls with a Relevant Authority to the extent that party was not present;
6.3.8 co-operate in any dealings with any Relevant Authority (including without prejudice to the generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority in consultation with the other party;
6.3.9 assist in the provision to any Relevant Authority such information as may be reasonably required by such Relevant Regulatory Authority in connection with the obtaining of any authorisations, clearances Clearances (including at the pre-notification stage).
3.8 Each party undertakes to keep the other party informed as soon as reasonably practicable of: (i) developments which are material or consents required reasonably likely to be material to the obtaining of a Clearance; and (ii) the satisfaction or expedient in the context waiver of the Acquisition; andRegulatory Conditions.
6.3.10 if necessary3.9 Each party undertakes not to withdraw a filing, negotiate with submission or notification made to any Relevant Regulatory Authority in relation connection with obtaining a Clearance without first notifying the other party in advance and seeking input from that other party, such input to any undertakingsbe reasonably taken into account before withdrawing the filing, orders submission or agreements which such Relevant Authority requires notification.
3.10 The parties agree that all information provided to facilitate them or their respective officers, directors, employees or representatives in connection with this Agreement and the Acquisition (whether or not shall be subject to the consent terms of that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakingsthe Confidentiality Agreement and the Regulatory Clean Team Agreement, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that the co-operation will be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the exchange of any commercially or competitively sensitive information in accordance with the provisions of clause 6.4.
6.4 If if a provision of this Clause 6 (Clearances) Agreement obliges a party (the "disclosing party") to disclose any information to the other:other:
6.4.1 (a) that is personally identifiable information of a director, partner, officer or employee of the disclosing party or any member of its Group or any of their respective affiliates, unless that information can reasonably be anonymised (in which case the disclosing party shall provide the relevant information on an anonymous basis);
(b) which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 which the disclosing party is prohibited from disclosing by Applicable Law sensitive or the terms of an existing contract; or
6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party:
6.4.3.1 pursuant to appropriate confidential information sharing procedures (including clean team agreements and on an external counsel only basis); and
6.4.3.2 where disclosure in a manner contemplated by Clause 6.3.2 party would reasonably be expected to have a material adverse effect on the disclosing party’s legitimate business interests;
(c) which the disclosing party is prohibited from disclosing by Law or the terms of an existing contract,
(d) where such disclosure would result in the loss of privilege that subsists in relation to such information, including legal professional privilege; or
(e) where such disclosure would result in the relevant information being required to be disclosed to a competing bidder pursuant to Rule 21.3 of the Code, the disclosing party shall, to the extent permitted by applicable Law (and, if relevant, the Code), disclose the relevant information:
(f) to the other party pursuant to appropriate arrangements as may be agreed between the parties to ensure compliance with Law (including, as applicable, competition Law and the practices of any Regulatory Authority);
(g) where deemed appropriate by the disclosing party, to the other party's legal counsel and, to the extent reasonably necessary in connection with any competition Clearance, its other advisers on an “external counsel only” basis (where applicable, in accordance with the requirements of Practice Statement No 30 published by the Panel); or
(h) where, in the sole discretion of the disclosing party, disclosure in a manner contemplated by this Agreement would be contrary to the disclosing party's interest, directly to a Relevant Regulatory Authority (and in such circumstances, the disclosing party shall provide may to the extent reasonably practicable provide, or procure the provision of, to the other party a redacted version or summary of such information).
6.5 The Bidder undertakes 3.11 Nothing in this Agreement shall require either party to disclose to or receive from the Target that until other party any information which the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member of the Bidder Group shall enter into an agreement for, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have the effect of preventing or delaying the obtaining of the Clearances disclosing party is prohibited from disclosing or the fulfilment receiving party is prohibited from receiving by Law or where such disclosure would result in the loss of any conditions attached privilege that subsists in relation to any Clearancessuch information.
Appears in 1 contract