Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d). (b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date. (c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions. (d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party. (e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences. (f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines. (g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser. (h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Occidental Petroleum Corp /De/)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller Company shall cause each of its Subsidiaries to, use their respective its reasonable best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or to cause to be taken, all actions, and doto do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated hereby, including (i) preparing and filing promptly and fully all documentation to effect obtaining all necessary filingsactions or nonactions, noticeswaivers, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Company Approvals, from Governmental Entities or other persons and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fourteen (14) Business Days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all Consents such filings and timely seeking all such consents, permits, authorizations or approvals, (including with respect iii) use reasonable best efforts to any Permitstake, including Environmental Permits) from any Governmental Authority or third party to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions Merger and (iii) executing and delivering any additional instruments the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case Antitrust Division of each the United States Department of clauses (i) through (iii)Justice, state or foreign antitrust enforcement authorities or competition authorities, other than with respect to filingsGovernmental Entities, notices, petitions, statements, registrations, submissions or other state or federal regulatory authorities of information, applications and any other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date) and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Termination Date.
(c) Without limiting completion of the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in transactions contemplated by this Agreement, including to the Purchaser (extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, as the case may be, or any of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed written communication by such party to any supervisory or Governmental Entity. Notwithstanding anything in this Agreement to the contrary, except as provided below, nothing contained in this Agreement shall be deemed to require Parent or any of its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets Company (unless requested by Parent) or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets its Subsidiaries or lines of businesses, the Surviving Corporation or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business Action of Divestiture or operations unless the effectiveness Limitation. For purposes of such agreement this Agreement, an “Action of Divestiture or action is conditioned upon the Closing. The Purchaser Limitation” shall mean (i) control executing or carrying out agreements or submitting to the strategy for obtaining any Consents from requirements of any Governmental Authority in connection with Entity providing for a license, sale or other disposition of any assets or businesses or categories of assets or businesses of the Transactions; provided that Company and its Subsidiaries or the Purchaser shall consult in good faith with holding separate of any assets or businesses or Company capital stock or imposing or seeking to impose any limitation on the Seller regarding ability of the Company or any of its Subsidiaries to own such strategyassets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) coordinate modification of a Company Permit or the overall development terms of any Contract with any customer of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, Company or any negotiations with, of its Subsidiaries in a Governmental Authority relating to manner that would materially reduce the Transactions economic benefits of such Company Permit or Contract or (iii) the imposition of any material condition or limitation that restricts the business of Parent or its Affiliates. The Company and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller Parent shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed written communication to any Governmental Entity. Notwithstanding anything in this Agreement to the contrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation with respect to the Company or any of its Subsidiaries so long as such filingAction of Divestiture or Limitation is binding on the Company and its Subsidiaries only in the event the Closing occurs. Notwithstanding anything in this Agreement to the contrary, submissionthe Company shall not, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party shall cause its Subsidiaries not to, the Antitrust Division undertake any Action of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC Divestiture or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto Limitation with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or any of its AffiliatesSubsidiaries without the consent of Parent, to the extent permitted under ISRA, will provide a self guarantee which may be withheld in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserParent’s sole discretion.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall each party will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable laws and regulations to cause consummate the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as soon as practicable after the date hereof, including, without limitation, (i) preparing and filing, in consultation with the other party and as promptly as practicable and to consummate and make effectiveadvisable after the date hereof, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filingsapplications, notices, petitions, statementsfilings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, submissions approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of information, applications the other transactions contemplated by this Agreement and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining taking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments steps as may be necessary to consummate obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals; provided, however, that efforts in connection with the TransactionsFinancing and the Required Indebtedness shall be governed by Section 7.12 and not this Section 7.3. In furtherance and not in limitation of the foregoing, in the case of each of clauses party hereto agrees (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated hereby as promptly as reasonably practicable following practicable, and in any event within 15 Business Days after the date execution of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such to take all other Antitrust Laws and to promptly take any and all steps actions necessary to avoid cause the expiration or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business termination of the Transferred Entities (including applicable waiting periods under the termination of any existing relationships or contractual rights of the Transferred Entities)HSR Act as soon as practicable, (ii) proffer or consent to any other restriction, prohibition or limitation on file all applications required to be filed with the ownership or operation FCC within 30 calendar days after the execution of any of such assets or lines of businesses, or this Agreement; and (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have file all notices and applications with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the PUCs within 15 Business from and Days after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision execution of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(db) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Each of Parent and the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority Company shall, in connection with the Transactions; provided that the Purchaser shall consult efforts referenced in good faith with the Seller regarding such strategySection 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act, the Communications Act or any other Regulatory Law (iias defined below), (i) coordinate the overall development of the positions to be taken cooperate in all respects and the regulatory actions to be requested consult with each other in connection with any communication, filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private personparty, allow including by allowing the other party and/or its counsel to have a reasonable opportunity to review such filingin advance and comment on drafts of any communications, submission, or substantive written communication in advance, filings and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, submissions (and documents submitted therewith); (ii) keep promptly inform the other parties hereto informed in all material respects and on a reasonably timely basis party of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or the FCC, any other Governmental Authority Entity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.each
Appears in 1 contract
Sources: Merger Agreement (Tw Telecom Inc.)
Efforts. (a) Subject to Section 6.3, each party shall use its commercially reasonable efforts, and shall cause its Affiliates to use their commercially reasonable efforts, to cause the terms and conditions Closing -52- to occur as soon as reasonably practicable after the date of this AgreementAgreement and, in any event, on or prior to the Purchaser Termination Date, including taking all actions reasonably necessary to comply as promptly as reasonably practicable with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing. Each party shall not, and shall not permit any of their respective Affiliates to, take any actions that would, or that could reasonably be expected to, result in any of the Seller conditions set forth in Article VII not being satisfied.
(b) Prior to the Closing, subject to Section 6.3, each party shall use its commercially reasonable efforts, and shall cause its Affiliates to use their respective commercially reasonable best efforts (unlessefforts, with respect to any actionobtain, another standard of performance is expressly provided for herein) and to promptly take, or cause to be takencooperate in obtaining, all actionsConsents from third parties, including any landlords and any Governmental Authorities, necessary or appropriate to permit the consummation of the transactions contemplated by this Agreement and to make or give, and doto cooperate in making or giving, all filings and notices necessary or cause appropriate in connection with the consummation of the transactions contemplated by this Agreement; provided, however, that neither the Company nor Buyer shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be donerequired (other than any reasonable filing or application fees). Without limiting the generality of the foregoing, each party shall, and assist shall cause its Affiliates to, prepare and cooperate file, in consultation with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied party and as promptly as practicable and to consummate and make effectiveadvisable after the date hereof, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filingsor appropriate applications, notices, petitionspetitions and filings, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including change of control Consent or notification requirements of applicable Governmental Authorities with respect to jurisdiction over any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the TransactionsHealth Care Law, in connection with the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of transactions contemplated by this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and maintain all Consents necessary to be obtained from any third party, including any Governmental Authority. Each of the parties will consult and cooperate reasonably with the other in connection with any event filings, analyses, presentations and memoranda made or submitted by or on behalf of itself or any of its Affiliates to any third party in accordance with this Section 6.2(b) (including, with respect to making a particular filing, by providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith). Following the Termination DateClosing, Seller shall use its commercially reasonable efforts, and shall cause its Affiliates to use their respective commercially reasonable efforts, to cooperate with Buyer’s and the Company’s and the Company Subsidiaries’ efforts to effect all necessary or appropriate applications, notices, petitions and filings with, and to obtain any and all Consents from, any Governmental Authority with jurisdiction over any Health Care Law, in each case, as promptly as practicable, to the extent such applications, notices, petitions and filings cannot be made and such Consents cannot be obtained, by their terms, until following the Closing.
(c) Without limiting Between the foregoing, the Purchaser date of this Agreement and the Closing Date, Seller shalland the Company shall give prompt notice to Buyer, and Buyer shall cause their respective Affiliates give prompt notice to useSeller and the Company, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliatesa) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale of any notice or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of communication received by such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided transactions contemplated by this Agreement or from any Person alleging that the Purchaser shall consult in good faith with the Seller regarding Consent of such strategy, and (ii) coordinate the overall development of the positions to Person is or may be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority required in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iiib) subject of any Actions or Proceedings commenced relating to Seller’s indemnification obligations with respect to or otherwise affecting such party or any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, Affiliates which relate to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in transactions contemplated by this Agreement, and (c) if such party becomes aware of any fact, circumstance or event that -53- would reasonably be expected to cause any of the Seller conditions set forth in Article VII not to be satisfied. Notwithstanding the foregoing, it is understood and its Affiliates shall have no obligation agreed that neither the delivery or non-delivery of any notice pursuant to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.016.2(c) nor any disclosures provided thereby shall affect any of the rights, remedies or obligations of the parties hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement
Efforts. (a) Subject to the terms and conditions provided herein, each of this Agreementthe Company, Parent and the Purchaser shall, and the Seller shall cause each of its subsidiaries to, cooperate and use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly takemake, or cause to be takenmade, all actions, filings necessary or proper under applicable laws and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and regulations to consummate and make effectiveeffective the transactions contemplated by this Agreement, including but not limited to cooperation in the most expeditious manner practicablepreparation and filing of the Offer Documents, the TransactionsSchedule 14D-9, the Proxy Statement and any required filings under the HSR Act (which filings under the HSR Act shall be made by the parties within five business days after the date hereof) and any amendments to any thereof. In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company or Parent or the Purchaser or any of their respective subsidiaries should be discovered by the Company or Parent, as the case may be, that should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including (i) preparing the execution of additional instruments, the proper officers and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case directors of each of clauses (i) through (iii), other than with respect party to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)this Agreement shall take all such necessary action.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall will use its reasonable best efforts to (i) cooperate in obtain as promptly as practicable all respects with each Consents of any Governmental Entity or any other person required in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advancewith, and consider in good faith waivers of any Violations that may be caused by, the views consummation of such other party with respect to such filing, submission, or substantive written communicationthe transactions contemplated by this Agreement, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of prevent any material communication received by such party from, action or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating Governmental Entity with respect and adverse to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted transactions contemplated by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to defend any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all lawsuits or other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of proceedings challenging this Agreement and or the consummation of the Transactions)transactions contemplated hereby, including causing (iv) subject in the case of the Company to execute an “ISRA Remediation Certification” form its rights set forth in Sections 1.2(a) and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that 6.10(a), cause the Purchaser, Tender Offer Conditions and the Company or its Affiliates, conditions to the extent permitted under ISRA, will provide a self guarantee Merger set forth in lieu of such required source or assurance) as necessary Article VII to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserbe satisfied.
(hc) Notwithstanding anything to the contrary in Except as otherwise expressly contemplated by this Agreement, Parent will not, and will not permit any of its subsidiaries to, during the Seller and its Affiliates shall have no obligation period from the date of this Agreement to pay money the Effective Time, without the prior written consent of the Company take or offer commit to take any action that would or make is reasonably likely to result in any concession of the Tender Offer Conditions or grant any accommodation (financial or otherwise) of the conditions to any Governmental Authority or other third party the Merger set forth in connection with the performance of their respective obligations under this Section 7.01Article VII not being satisfied.
Appears in 1 contract
Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this AgreementAgreement and subject to and in accordance with applicable Law, the Purchaser Company and the Seller Parent shall each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing, doing all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Law or otherwise to consummate and make effective, in effective the most expeditious manner practicable, the Transactionstransactions contemplated by this Agreement, including (isubject to, and without intending to limit, Section 2.1(c)) preparing and filing promptly and fully all documentation by causing the Closing to effect all necessary filingsoccur on or before August 31, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)2011, (ii) obtaining obtain from any Governmental Entities any actions, non-actions, clearances, waivers, consents, approvals, permits or orders required to be obtained by the Company, Parent or any of their respective Subsidiaries in connection with the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, (iii) make all Consents (including necessary registrations and filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) any Permitsapplicable federal or state securities Laws, (B) the HSR Act and any Competition Laws of jurisdictions other than the United States and (C) any other applicable Law; provided, however, that the Company and Parent shall cooperate with each other in connection with the making of all such filings, including Environmental Permitsas set forth below and with respect to providing copies of all such filings and attachments to outside counsel for the non-filing party, (iv) from any Governmental Authority or third party obtain all consents, registrations, approvals, permits and authorizations required, necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering be obtained from, or renewed with, any additional instruments necessary other Person, in each case in order to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of transactions contemplated by this Agreement, (and in v) furnish all information required for any event with respect application or other filing to filings be made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority Law in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationthis Agreement, (iivi) keep the other parties hereto party informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority Entity and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of informationtransactions contemplated by this Agreement, (vii) permit the other parties to review any material communication delivered to, and to the extent reasonably practicable, consult consulting with the other parties hereto with respect to information party in advance of any meeting or conference with, any Governmental Entity relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, transactions contemplated by this Agreement or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Actany proceeding by a private party relating thereto, and giving the other party the opportunity to attend and participate in such meetings and conferences (iv) to the extent permitted by such Governmental Entity or private party), (viii) avoid the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution entry of, or consenting tohave vacated or terminated, FPA Section 203-related applications any decree, order, or submissions with FERCjudgment that would restrain, prevent or delay the Closing, including defending any inquiries from stafflawsuits or other legal proceedings, which applications whether judicial or submissions shall be made as soon as practicableadministrative, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of challenging this Agreement and or the consummation of the Transactions will requiretransactions contemplated hereby and (ix) execute and deliver any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement. No parties to this Agreement shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld. Without limiting this Section 6.7, Parent agrees to take, or to cause to be taken, any and all steps and to make any and all undertakings necessary to avoid or eliminate each and every impediment under any Competition Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event, no later than the Termination Date), including proposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the parties shall reasonably cooperate sale, divestiture, licensing or disposition of such assets or businesses of Parent (or its Subsidiaries) or the Company or otherwise taking or committing to take actions that limit Parent’s or its Subsidiaries’ freedom of action with respect to, compliance with or their ability to retain, any of the New Jersey Industrial Site Recovery Actbusinesses, N.J.S.A. 13:1K-6 et seq.product lines or assets of Parent (or its Subsidiaries) or the Company, and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq.in each case, as amended (“ISRA”)may be required in order to avoid the entry of, (ii) or to effect the Seller shall complete and file a “General Information Notice” as defined under and dissolution of, any injunction, temporary restraining order, or other order in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreementany suit or proceeding, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) which would otherwise have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with effect of preventing or delaying the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserClosing.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to Each of the terms Company, Parent, Merger Sub I, and conditions of this Agreement, the Purchaser and the Seller Merger Sub II shall use their its respective reasonable best efforts to (unless, with respect and each of them will cause its respective Subsidiaries to any action, another standard of performance is expressly provided for hereinuse reasonable best efforts to) to promptly (i) take, or cause to be taken, all actions, appropriate action and do, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Mergers, the Parent Common Share Issuance and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take all such actions (if any) as may be required to cause the conditions expiration of the notice periods under Competition Laws with respect to the Closing to be satisfied such transactions as promptly as practicable after the execution of this Agreement, (iii) obtain (A) from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent, Merger Sub I, Merger Sub II or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event not later than the Outside Date, and to consummate and make effectiveavoid any action or Proceeding by any Governmental Entity or any other Person, in connection with the most expeditious manner practicableauthorization, execution and delivery of this Agreement and the Transactionsconsummation of the transactions contemplated hereby, including the Mergers, and (iB) preparing from any Third Party (other than a Governmental Entity) any consents or notices that are required to be obtained or made by Parent, Merger Sub I, Merger Sub II or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement in the case of this clause (B), only to the extent that Parent, Merger Sub I, Merger Sub II and filing the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made (it being understood that the failure to receive or make any such consents or notices will not be a condition precedent to Parent’s, M▇▇▇▇▇ Sub I’s, M▇▇▇▇▇ Sub II’s or the Company’s obligations to consummate the transactions contemplated hereby), (iv) cause the satisfaction of all conditions within its control set forth in Article VI, and (v) prepare and file as promptly and fully as practicable all documentation to effect all necessary filingsapplications, notices, petitions, statementsfilings, registrationsruling requests, submissions of information, applications and other documents necessary to obtain the consents, approvals and other deliverables set forth in clauses (including with respect to any Permits, including Environmental Permits), (iiA) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iiiB) executing above, and delivering any additional instruments take all reasonable steps as may be necessary to consummate the Transactionsobtain all such consents, approvals and other deliverables; provided, however, that, in the case of each of clauses clause (i) through (iiiB), in no event will Parent, Merger Sub I, Merger Sub II or the Company, or any of their respective Subsidiaries be required to pay prior to the First Effective Time any fee, penalty or other than with respect consideration to filings, notices, petitions, statements, registrations, submissions any such Third Party for any consent or approval required for the consummation of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the transactions contemplated by this Agreement under any Contract.
(b) Each Notwithstanding anything to the contrary in this Agreement, (i) Parent shall, after considering in good faith the views and comments of the parties hereto agrees Company (and its outside legal counsel) and acting in good faith, exercise principal responsibility to direct and control all aspects of the Parties’ efforts to gain regulatory clearance before any Governmental Entity of the transactions contemplated hereby pursuant to any Competition Law; provided, however, that Parent shall not enter into any agreement with a Governmental Entity to extend any waiting period under the Competition Laws or to delay or not to consummate the transactions contemplated by this Agreement without the prior written consent of the Company, except that Parent may once withdraw and refile its “Notification and Report Form” under the HSR Act as provided by 16 C.F.R. 803.12, (ii) nothing in this Agreement shall require the Company, Parent, Merger Sub I or Merger Sub II to defend through litigation any claim asserted in any court or other governmental body with respect to the Mergers by the United States Federal Trade Commission, the United States Department of Justice or any other applicable Governmental Entity, (iii) none of the Company, Parent, Merger Sub I or Merger Sub II and none of their respective affiliates shall be required to offer, negotiate, commit to, effect, enter into or take any action, agreement, condition, commitment or remedy of any kind, including any remedy that would require the Company, Parent, Merger Sub I or Merger Sub II or any of their respective affiliates to sell, divest, lease, license, transfer, dispose of, or otherwise encumber, impair, limit or restrict any of their or their respective affiliates’ ownership, control, management or operation of assets or businesses (including for the avoidance of doubt, any equity or other interests) of any of Parent, Merger Sub I, Merger Sub II, the Merger I Surviving Corporation, the Merger II Surviving Company, any Parent Subsidiary, the Company or any Company Subsidiary, or any of their respective affiliates, and (iv) the Company shall not, and shall cause the Company Subsidiaries and their respective controlled affiliates not to, without the prior written consent of Parent, offer, negotiate, commit to, effect, enter into or take any action, agreement condition, commitment or remedy as described in Section 5.5(b)(iii).
(c) Without limiting the generality of anything contained in this Section 5.5, each Party shall, (i) make with respect to the transactions contemplated hereby an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, and advisable (and in any event with respect to filings made pursuant to the HSR Act within ten twenty (1020) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days after the date of this AgreementAgreement (unless otherwise mutually agreed in writing by the Parties), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer give the other Parties prompt notice of the making or consent to any other restriction, prohibition or limitation on the ownership or operation commencement of any of such assets request, inquiry, investigation, action or lines of businesses, Proceeding by or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that before any Governmental Authority may have Entity with respect to the Transactions (Mergers or any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject keep the other Parties notified as to Seller’s indemnification obligations the status of any such request, inquiry, investigation, action or other Proceeding, (iv) promptly notify the other Parties of any oral or written communication to or from any Governmental Entity regarding the Mergers or any of the other transactions contemplated by this Agreement, (v) promptly provide to the other Parties copies of any written communications received or provided by such Party, or any of its Subsidiaries, from or to any Governmental Entity with respect to the Mergers or any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed other transactions contemplated by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwisevi) respond as promptly as practicable to any inquiries received from any Governmental Authority Entity enforcing applicable Competition Laws for additional information or other third party in connection with the performance of their respective obligations documentation material, including any request for additional information or documentary material issued by a Governmental Entity under this Section 7.01.15 U.S.C.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller shall other Transaction Documents, each party hereto will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable desirable under applicable law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, the parties hereto will (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(b) and Section 3.1(d), use their reasonable best efforts to obtain as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as practicable and fully all documentation to effect all necessary filingsadvisable, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other parties hereto in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the parties hereto agrees to foregoing, (i1) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d), but in any event within ten (10) Business Days of the date of this Agreement, unless a later date is mutually agreed between the parties), the parties will file the Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice (the date on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date”) and (2) as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)), file, make or give, as applicable, all other filings, requests and/or notices required under any other Antitrust Laws, in each case with respect to the Equity Transactions (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (1) and (2), collectively, the “Initial Antitrust Filings”). In addition, if, on or prior to the one-year anniversary of the date on which the Initial Antitrust Clearance was obtained, the IOMS Rights Holder and its Designees (for the avoidance of doubt, expressly including for this purpose any Warrantholder (as defined in Warrant 1) pursuant to the exercise in-part of Warrant 1 pursuant to the terms thereof during the Warrant 1 Special Exercise Period) have not exceeded the then-current $500 million (as adjusted) or greater notification threshold under HSR Act Rule 801.1(h), 16 C.F.R. § 801.1(h), as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d), but in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar daysBusiness Days of such one-year anniversary, providedunless a later date is mutually agreed between the parties), that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a parties will file the Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States federal government shutdown Department of Justice with respect to the Equity Transactions in order to exceed the then-current $500 million (as adjusted) or greater notification threshold under HSR Act Rule 801.1(h), 16 C.F.R. § 801.1(h) (but not, for purposes of such filing, any greater notification threshold) (the “Second HSR Filing”, and the date on which all such Notification and Report Forms comprising the Second HSR Filing shall have been initially filed, the “Second HSR Filing Date”). In addition, following the date receipt of this Agreementthe Initial Antitrust Clearance, to the extent required by applicable law (including, for the avoidance of doubt any Antitrust Law) in connection with any acquisition of shares of Common Stock comprising all or any portion of the Equity Transactions (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as practicable and advisable (ii) as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)), any further required filings, requests and/or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings” and any such acquisitions, “Other Equity Transactions”, provided that “Other Antitrust Filings” shall not include the Second HSR Filing). Without limiting the generality of the foregoing, each party agrees to supply as promptly as reasonably practicable and advisable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act and such or any other Antitrust Laws Laws.
(c) Subject to the terms and conditions hereof (including the remainder of this Section 3.1) and the other Transaction Documents, each of the parties hereto agrees to promptly take any and all steps necessary use its reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required asserted by any foreign or U.S. federalGovernmental Entity, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior give effect to the Termination Date.
(c) Without limiting transactions contemplated hereby and by the foregoing, other Transaction Documents in accordance with the Purchaser terms hereof and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, thereof; provided, that notwithstanding anything to the contrary contained herein or in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i)other Transaction Documents, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary nothing in this Section 7.01 3.1 shall require, or be construed to require, any other provision of this Agreement, neither the Seller nor party hereto or any of its Affiliates to agree to (and no party hereto (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action Walgreens with respect to its business and/or its Affiliates own assets, businesses or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority interests, in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or each case other inquiry or litigation by or before, than WBAD or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act its subsidiaries) or any other Antitrust Laws or enter into a timing agreement with any Governmental Authorityof its Affiliates will agree to, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to parties): (i) cooperate sell, hold separate, divest, discontinue or limit (or any conditions relating to, or changes or restrictions in, the operation of) any assets, businesses or interests of it or its Affiliates (irrespective of whether or not such assets, businesses or interests are related to, are the subject matter of or could be affected by the transactions contemplated by the Transaction Documents); (ii) without limiting clause (i) in all respects with each any respect, any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests that would reasonably be expected to adversely impact (x) the business of, or the financial, business or strategic benefits of the transactions contemplated hereby or by any of the other Transaction Documents to it or its Affiliates, or (y) any other assets, businesses or interests of it or its Affiliates; or (iii) without limiting clause (i) in any respect, any modification or waiver of the terms and conditions of this Agreement or any of the other Transaction Documents that would reasonably be expected to adversely impact (x) the business of, or financial, business or strategic benefits of the transactions contemplated hereby or by any of the other Transaction Documents to it or its Affiliates, or (y) any other assets, businesses or interests of it or its Affiliates. For purposes of the foregoing proviso, it is expressly acknowledged and agreed that the mere fact, in and of itself, that an approval or consent of a Governmental Entity required in connection with all or any filing, submission portion of the Equity Transactions does not also expressly include or substantive written communication with a Governmental Authority expressly constitute an affirmative approval or consent for the Investors’ Beneficial Ownership of shares of Common Stock to exceed the Ultimate Standstill Level shall not be considered to adversely impact the Investors or their Affiliates in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsway, including any proceeding initiated of their respective assets, businesses or interests or their respective financial, business or strategic benefits from the transactions contemplated hereby or by a private person, allow any of the other party Transaction Documents. For purposes of this Agreement, the term (x) “Initial Antitrust Clearance” as of any time means (a) prior to review such filingtime, submissionthe expiration or termination of the waiting period under the HSR Act and the receipt of all exemptions, authorizations, consents or substantive written communication in advanceapprovals, the making of all filings and the giving of all notices, and consider in good faith the views expiration of such other party with respect all waiting periods, pursuant to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonAntitrust Laws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating the Initial Filing Transaction, and (b) the absence at such time of any applicable law or temporary restraining order, preliminary or permanent injunction or other judgment, order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation, decision or decree issued by any court of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in each case that has the effect of preventing the consummation of the Initial Filing Transaction, (y) “Second HSR Clearance” as of any time following the Initial Antitrust Clearance means, with respect to the other parties hereto and their respective Subsidiaries, as Equity Transactions (to the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used extent set forth in the rules and regulations Second HSR Filing), prior to such time, the expiration or termination of the waiting period under the HSR Act, and (ivz) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information NoticeOther Antitrust Clearance” as defined under and in compliance with ISRA (of any time following the “ISRA Filing”) within five days of the date of this AgreementInitial Antitrust Clearance means, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)Other Equity Transaction, (Aa) prior to such time, the expiration or termination of the waiting period under the HSR Act and the receipt of all exemptions, authorizations, consents or approvals, the making of all filings and the giving of all notices, and the expiration of all waiting periods, pursuant to any other Antitrust Laws, in each case to the extent required with respect to such Other Equity Transaction, and (b) the “General Information Notice” shall identify and be executed absence at such time of any applicable law or temporary restraining order, preliminary or permanent injunction or other judgment, order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation, decision or decree issued by any court of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in each case that has the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result effect of this Agreement and preventing the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserOther Equity Transaction.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Framework Agreement (Walgreen Co)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller Company shall cause each of its Subsidiaries to, and shall request each of KMP and the Company Joint Ventures to, use their respective its reasonable best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or to cause to be taken, all actions, and doto do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated hereby, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties, (including with respect iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any Permitsthird party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, including Environmental Permitsbut not limited to approvals from the California Public Utilities Commission, the Colorado Public Utilities Commission, the Wyoming Public Services Commission, the Nebraska Public Utilities Commission and under the Investment Canada Act and the Competition Act (Canada) from any Governmental Authority (the “Specified Regulatory Clearances”), (iii) use reasonable best efforts to take, or third party to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions Merger and (iii) executing and delivering any additional instruments the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case Antitrust Division of each the United States Department of clauses (i) through (iii)Justice, state or foreign antitrust enforcement authorities or competition authorities, other than Governmental Entities in connection with respect to filingsthe Specified Regulatory Clearances, notices, petitions, statements, registrations, submissions or other state or federal regulatory authorities of information, applications and any other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), nation or other jurisdiction or any other person may assert under Regulatory Law (cas hereinafter defined) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date (as hereinafter defined)), (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Termination Date.
(c) Without limiting completion of the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in transactions contemplated by this Agreement, including to the Purchaser (extent permitted by Law promptly furnishing the other with true and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale complete copies of notices or other dispositioncommunications sent or received by the Company or Parent, as the case may be, or any of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the holding separateother to review in advance any proposed communication by such party to any supervisory or Governmental Entity and (v) give the other reasonable notice of, of particular assetsand, categories of assets or lines of business of to the extent permitted by such partyGovernmental Entity, including assets or lines of business of allow the Transferred Entities (including the termination other to attend and participate at any meeting with any Governmental Entity in respect of any existing relationships filings, investigation or contractual rights of the Transferred Entities), (ii) proffer other inquiry or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, proceeding relating thereto. Notwithstanding anything in order to remedy any concerns that any Governmental Authority may have with respect this Agreement to the Transactions (any of the actions described in the foregoing clause (i)contrary, (ii) or (iii) an “Antitrust Remedial Action”)except as provided below, other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing nothing contained in this Agreement shall be deemed to require Parent, any party of its Subsidiaries, the Company (unless requested by Parent), or the Surviving Corporation or any of its Subsidiaries to take or agree to take any action with respect to its business Action of Divestiture or operations unless the effectiveness Limitation. For purposes of such agreement this Agreement, an “Action of Divestiture or action is conditioned upon the Closing. The Purchaser Limitation” shall mean (i) control executing or carrying out agreements or submitting to the strategy for obtaining any Consents from requirements of any Governmental Authority in connection with Entity providing for a license, sale or other disposition of any material assets or businesses or material categories of assets or businesses of the Transactions; provided that Company and its Subsidiaries or the Purchaser shall consult in good faith with holding separate of any material assets or businesses or Company capital stock or imposing or seeking to impose any material limitation on the Seller regarding ability of the Company or any of its Subsidiaries to own such strategyassets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) coordinate modification of a Company Permit or the overall development terms of any Contract with any customer of the positions to be taken and Company or any of its subsidiaries in a manner that would materially affect the regulatory actions to be requested in Company or (iii) the imposition of any filing condition or submission with a Governmental Authority in connection with limitation that would materially affect the Transactions and Company on or in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent approval listed on Section 6.3(e) of the Parent Disclosure Letter (other party.
(ethan any such condition or limitation to which such approval is customarily subject) Each or that materially restricts the business of Parent or that materially restricts the business of any of the parties hereto Affiliates of Parent. The Company and Parent shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed written communication to any Governmental Entity. Notwithstanding anything in this Agreement to the contrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation so long as such Action of Divestiture or Limitation is binding on the Company only in the event the Closing occurs; provided, however, that the Company shall not be required to take, or cause to be taken, any such action with respect to KMP or KMR unless such filing, submission, or substantive written communication, (ii) keep action is approved by the other parties hereto informed Conflicts and Audit Committee thereof in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division accordance with Section 6.9 of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given Partnership Agreement. Notwithstanding anything in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating this Agreement to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchasercontrary, the Company shall not undertake any Action of Divestiture or its Affiliates, to Limitation without the extent permitted under ISRA, will provide a self guarantee in lieu consent of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserParent.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Kinder Morgan Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall (and shall cause their respective Subsidiaries to) each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Law to cause consummate and make effective the conditions to the Closing to be satisfied Transactions as promptly as practicable and in any event prior to consummate and make effective, in the most expeditious manner practicable, the TransactionsEnd Date, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions, notices, petitions, statementswaivers, registrations, submissions permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of informationany applicable waiting periods, applications and other documents the making of all necessary registrations and filings (including filings with respect Governmental Authorities, if any) and the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Permits, including Environmental Permits)Governmental Authorities, (ii) the delivery of required notices to, and the obtaining all Consents (including with respect to any Permitsof required consents or waivers from, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable Third Parties necessary to consummate the Transactions and (iii) executing the execution and delivering delivery of any additional instruments necessary to consummate the TransactionsMerger and to fully carry out the purposes of this Agreement, including the execution and delivery of the Company Closing Representation Letter and the Parent Closing Representation Letter (in each case, as defined in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (dTri-Party Agreement).
(b) Each In furtherance and not in limitation of the parties hereto agrees undertakings pursuant to this Section 6.10, each of Parent and the Company shall (i) make an appropriate filing of a Notification prepare and Report Form pursuant to file any notification and report forms and related material required under the HSR Act and other applicable Antitrust Laws with respect to the Transactions (which shall request as set forth on Section 6.10(b) of the early termination of any waiting period applicable to the Transactions under the HSR Act) Company Disclosure Schedules, and any required notification under any other Antitrust Laws additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable following the date of this Agreementand advisable, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply provide or cause to be provided as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities. Parent shall pay all filing fees payable pursuant to the HSR Act and such or other applicable Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date(if any).
(c) Without limiting the foregoingSubject to Applicable Law, the Purchaser Company and the Seller shall, Parent and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) counsel shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow (ii) have the other party right to review such filing, submission, or substantive written communication in advance, and consider in good faith to the views of such extent practicable each shall consult the other party with respect to such filingon, submissionany material filing made with, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party materials to be submitted to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The Company and Parent shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, and subject to applicable Laws relating Parent’s obligations under Section 6.10(d), direct and control all aspects of the parties’ efforts to gain regulatory clearance either before any Governmental Authority or in any action brought to enjoin the exchange Transactions pursuant to any Antitrust Laws; provided, that each of informationthe parties hereto shall have the right to review in advance, and to the extent reasonably practicable, practicable each will consult with the other parties hereto with respect to on, all the information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any third Person or Third Party and/or any Governmental Authority in connection with the Transactionsany governmental inquiry, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) investigation or proceeding with respect to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser Company and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq.Parent may, as amended (“ISRA”)each deems advisable and necessary, (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to reasonably designate any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, competitively sensitive material provided to the extent permitted other under ISRA, will provide a self guarantee in lieu of such required source or assurance) this Section 6.10 as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser“Antitrust Counsel Only Material.
(h) ” Notwithstanding anything to the contrary in this AgreementSection 6.10, materials provided to the Seller other party or its counsel may be redacted to remove references concerning the valuation of the Company and the Company Subsidiaries.
(d) Without limiting the generality of the undertakings of Parent pursuant to Section 6.10(a) and Section 6.10(b), Parent shall, and shall cause each of its Affiliates shall have no obligation Subsidiaries to, take any and all steps necessary to pay money avoid or offer or make eliminate each and every impediment under any concession or grant any accommodation (financial or otherwise) to Antitrust Law that may be asserted by any Governmental Authority or any other third party Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the End Date, including (i) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company or its Subsidiaries, (ii) permitting the Company to sell, divest or otherwise convey or hold separate any of the particular assets or categories of assets or businesses of the Company or any of its Subsidiaries prior to the Effective Time, (iii) terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries, (iv) terminating any joint venture or other arrangement of the Company or its Subsidiaries or (v) creating any relationship, contractual right or obligation of the Company or its Subsidiaries (or, in each case, entering into agreements or stipulating to the entry of any Order by, or filing appropriate applications with, the FTC, the DOJ or any other Governmental Authority in connection with any of the performance foregoing and, in the case of actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action)) (each of the actions described in clauses (i)—(v), a “Divestiture Action”); provided, however, that in no event shall anything in this Agreement require, or be construed to require, the Company, Parent or any of their respective Affiliates to (1) take, or agree to take, any Divestiture Action unless all Divestiture Actions collectively would not result in a material adverse effect on the business, results of operations, assets or financial condition of the Company and its Subsidiaries, taken as a whole or (2) take any actions, including the actions described in clauses (i)—(v) above with respect to Parent, its Affiliates or their respective assets, categories of assets, businesses, relationships, contractual rights, obligations under or arrangements. To assist Parent in complying with its obligations set forth in this Section 7.016.10(d), the Company shall enter into one or more agreements requested by Parent to be entered into by any of them prior to the Closing (but conditioned upon consummation of the Closing) with respect to any Divestiture Action. Parent shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions, and the Company, Parent and Merger Sub and any of their respective Affiliates shall not take any action with the intention to, or that would reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC or under any other applicable Antitrust Laws. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining the expiration or termination of the applicable waiting periods under, or any approvals under, the HSR Act or other applicable Antitrust Laws or approvals from any other Governmental Authorities, unless the effectiveness of such agreement or action is conditioned upon the Closing.
Appears in 1 contract
Sources: Merger Agreement (Bioverativ Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreementhereof, the Purchaser and the Seller each party hereto shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with consummate the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied transactions contemplated hereby as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) The Company and Parent will, within five (5) Business Days after the date hereof, file with the Federal Trade Commission and the Department of Justice the notification and report forms required for the transactions contemplated hereby and any supplemental information that may be reasonably requested in connection therewith pursuant to the HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act and request early termination of the waiting period contemplated by the HSR Act. The Company and a Parent will, within ten (10) Business Days after the date hereof, make all filings or submissions as are required to obtain all Foreign Governmental Approvals, if any. For purposes of this Agreement, “Foreign Governmental Approvals” means any consent or order of any foreign governmental authority set forth on Schedule 5.4(b). Each of Parent and the parties hereto agrees Company will promptly furnish to the other (i) make an appropriate all necessary information as the other may reasonably request in connection with the preparation of any filing of a Notification and Report Form or submission pursuant to the HSR Act or any Foreign Governmental Approval and (ii) copies of all written communications (and memoranda setting forth the substance of any oral communication) in connection with any Foreign Governmental Approval or the Federal Trade Commission or Department of Justice in connection with this Agreement. Each of Parent and the Company will consult with the other prior to any meetings, by telephone or in person, with the staff of the Federal Trade Commission, Department of Justice or any other Governmental Authority, and each of Parent and the Company will have the right to have a representative present at any such meeting. Parent shall pay all filing fees required with respect to the Transactions (which shall request the early termination notification, report and other requirements of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Foreign Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination DateApprovals.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller Parties shall use their respective all commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Mergers and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect obtaining all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Vowel Specified Approvals and the Consonant Specified Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (ii) obtaining all Consents necessary consents, approvals or waivers from third parties, and (including iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that, except as otherwise expressly provided in this Agreement, in no event shall Vowel or any of its Subsidiaries, or Consonant or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement in excess of $500,000.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Parties shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the Parties), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use commercially reasonable efforts to cause the expiration or termination of any Permitsapplicable waiting periods under the HSR Act; (ii) use commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, including Environmental Permitsor consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) from timely making all such filings and timely seeking to obtain all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Authority Authorities as reasonably promptly as practicable any additional information or third party documents that may be requested pursuant to any Law or by such Governmental Authority; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments transactions contemplated hereby, including taking all such further action as may be necessary promptly to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Division of the parties hereto agrees to (i) make an appropriate filing United States Department of a Notification and Report Form pursuant to the HSR Act Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Authority with competent jurisdiction respect to the Mergers so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the Outside Date); provided, however, that nothing contained in this Agreement shall be deemed to the Termination Daterequire any Party or any Subsidiary or Affiliate thereof to agree to any Action of Divesture.
(c) Without limiting the foregoing, the Purchaser Subject to applicable legal limitations and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, instructions of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority and the Confidentiality Agreements, Vowel and Consonant shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Vowel or Consonant or any of their respective Affiliates, as the case may have be, or any of their respective Subsidiaries, from any third party and/or any Governmental Authority with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from such transactions. Vowel and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) Consonant shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy permit counsel for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with with, any proceeding by a private Person, in each case regarding proposed written communication to any Governmental Authority. Each of the Transactions, (iii) subject Vowel and Consonant agrees not to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears participate in any filing made withsubstantive meeting or discussion, either in person or written materials submitted toby telephone, any third Person or with any Governmental Authority in connection with the Transactionsproposed transactions unless it consults with the other party in advance and, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited by the FTCa Governmental Authority, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and party the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(fd) In furtherance and not in limitation of the obligations set forth covenants of the Parties contained in Section 7.01(a5.5(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Vowel and otherwise subject to the terms of this Section 7.01, the Seller Consonant shall cooperate in all respects with each other and the Purchaser shall use their respective commercially reasonable best efforts to obtain approval from FERC pursuant contest and resist any such Proceeding and to Section 203 have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the FPA in order to consummate Mergers and the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of other transactions contemplated by this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(ge) In connection with Notwithstanding the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution provisions of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”Sections 5.5(a)-(d), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRAthat a Party or its Affiliates has confidential information contained in any filing with or correspondence to a Governmental Authority, will provide a self guarantee in lieu such Party shall not be required to share such portion of such required source filing or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance correspondence with the terms of Section 10.05(c) and using other Party. A Party may request entry into a licensed site remediation professional reasonably acceptable joint defense agreement as a condition to Purchaser.
(h) Notwithstanding anything providing any materials to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party another Party in connection with the performance matters covered by Sections 5.5(a)-(d) and, upon receipt of their respective obligations under this Section 7.01that request, the Parties shall work in good faith to enter into a joint defense agreement to create and preserve attorney-client privilege in a form and in substance mutually acceptable to the Parties.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, the Purchaser and the Seller each Party shall use their respective its reasonable best efforts (unlessefforts, with respect and shall cause their Affiliates to any actionuse reasonable best efforts, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate the purchase and make effective, in the most expeditious manner practicable, sale of the TransactionsTransferred Assets and the other transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions obtaining entry of information, applications and other documents (including with respect to any Permits, including Environmental Permits)the Bankruptcy Court Orders, (ii) obtaining all Consents (including with respect to any Permitsentry of the Admiralty Court Order, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing the obtaining of all necessary actions or non-actions, waivers, consents, clearances, approvals, and delivering the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iv) subject to Section 1.3, the obtaining of all necessary consents, approvals or waivers from third parties and (v) the execution and delivery of any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)transactions contemplated by this Agreement.
(b) Each Subject to the terms and conditions of this Agreement, each of the parties hereto agrees shall use its respective reasonable best efforts to (i) make an appropriate filing of a Notification promptly any required submissions and Report Form pursuant to the HSR Act filings under applicable Antitrust Laws with respect to the Transactions transactions contemplated by this Agreement, promptly furnish information required in connection with such submissions and filing under such Antitrust Laws and, keep the other parties reasonably informed with respect to the status of any such submissions and filings under Antitrust Laws, including with respect to: (which shall request A) the early termination receipt of any non-action, action, clearance, consent, approval or waiver, (B) the expiration of any waiting period applicable to period, (C) the Transactions commencement or proposed or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementand, (D) the nature and in status of any event objections raised or proposed or threatened to be raised under Antitrust Laws with respect to the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing: (i) the Purchaser, the Sellers and RMST agree to (A) make, or cause to be made, appropriate filings made pursuant to any Antitrust Laws with respect to the HSR Act within ten transactions contemplated by this Agreement as soon as practicable, (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (iiB) supply as promptly soon as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act any Antitrust Law, and such (C) use their reasonable best efforts to take, or cause to be taken, all other Antitrust Laws and to promptly take any and all steps actions consistent with this Section 5.2(b) necessary to avoid cause the expiration or eliminate each and every impediment and obtain all Consents termination of the applicable waiting periods under any Antitrust Laws Law (including any extensions thereof) as soon as practicable and (ii) each party agrees to (A) supply as soon as practicable any additional information and documentary material that may be required or requested by any foreign Governmental Entity and (B) use its reasonable best efforts to take or U.S. federalcause to be taken all other actions consistent with this Section 5.2(b) as necessary to obtain any necessary approvals, state consents, waivers, permits, authorizations or local other actions or non-actions from each Governmental Authority, in each case with competent jurisdiction so Entity as to enable soon as practicable. The Purchaser shall be responsible for all filing fees under the parties hereto to consummate the Transactions as promptly as reasonably practicable Antitrust Laws and in any event prior other Laws applicable to the Termination Datetransaction.
(c) Without limiting Each of Purchaser, RMST and Sellers shall: (i) promptly notify the foregoingother parties of, and if in writing, furnish the others with copies of (or, in the case of oral communications, advise the others of the contents of) any communication to such Person from a Governmental Entity and permit the others to review and discuss in advance (and to consider in good faith any comments made by the others in relation to) any proposed written communication to a Governmental Entity, (ii) keep the others reasonably informed of any developments, meetings or discussions with any Governmental Entity in respect of any filings, investigation, or inquiry concerning the transactions contemplated by this Agreement and (iii) not independently participate in any meeting or discussions with a Governmental Entity in respect of any filings, investigation or inquiry concerning the transactions contemplated by this Agreement without giving the other Party prior notice of such meeting or discussions and, unless prohibited by such Governmental Entity, the opportunity to attend or participate; provided that, (A) each of the Purchaser and the Seller shallSellers and RMST may designate any non-public information provided to any Governmental Entity as restricted to “Outside Antitrust Counsel” only and any such information shall not be shared with employees, officers, managers or directors or their equivalents of the other party without approval of the party providing the non-public information, and (B) materials may be redacted (x) to remove references concerning the valuation of the Business, (y) as necessary to comply with contractual arrangements and (z) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) Notwithstanding anything herein to the contrary and subject to clause (ii) of the following sentence, the Parties understand and agree that reasonable best efforts of Purchaser hereto shall not be deemed to include: (A) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity in connection with the transactions contemplated hereby or defending against or initiating any lawsuit, action or proceeding, judicial or administrative, challenging this Agreement or the transactions contemplated hereby, or (B) proposing, negotiating, agreeing to or offering to commit to any sale, divestiture, license, disposition or separation (including by establishing a trust or otherwise) of, or any limitation on any operation or business of, any of its or any Purchaser Related Party’s businesses, assets or properties. In furtherance, and not in limitation, of the foregoing in this Section 5.2(d), (i) Sellers and RMST shall not, and shall cause their respective Affiliates not to, propose, negotiate, agree to useor offer to commit to any sale, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Datedivestiture, providedlicense, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer disposition or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination separation of any existing relationships Transferred Asset or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental AuthorityRMST Asset, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advancePurchaser, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the Purchaser shall not be required to agree to any divestiture, sale or other parties hereto informed in all material respects and on a reasonably timely basis disposition of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, Transferred Assets or written materials submitted to, any third Person RMST Assets or any Governmental Authority in connection with the Transactions, other than “Transaction-assets of Purchaser or any Purchaser Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) Party or agree to the extent permitted by the FTC, the DOJ, FERC any limitation on any operation or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance business of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The or any Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesRelated Party.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Asset Purchase Agreement (Premier Exhibitions, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall cooperate with each other and use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Law to cause consummate the conditions Merger and the other transactions contemplated hereby and by the Ancillary Agreements to the Closing which it is party to be satisfied as reasonably promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing as reasonably promptly and fully as practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, financial statements, records, applications and other documents (including with respect documents, in each case, to any Permits, including Environmental Permits)the extent applicable, (ii) obtaining and maintaining all Consents (including with respect to any approvals, consents, registrations, Permits, including Environmental Permits) authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority Authority, any Third Party or third party necessary, proper any Affiliate of the Company that are necessary or advisable in order to consummate the Transactions transactions contemplated hereby and by the Ancillary Agreements to which it is party to and (iii) executing and delivering defending or contesting any additional instruments necessary to consummate action, suit or proceeding challenging this Agreement or the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)transactions contemplated hereby.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall make (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as reasonably promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten fifteen (1015) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days after the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entitieshereof), (ii) proffer or consent make each other appropriate filing required pursuant to any other restrictionForeign Antitrust Law (collectively with the HSR Act, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses“Antitrust Laws”) as reasonably promptly as practicable after the date hereof, or (iii) proffer use reasonable best efforts to comply with requests under any applicable Antitrust Laws for additional information, documents or consent to enter any other Contract regarding materials received by each of them or any of such assets their respective Subsidiaries or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding respect of such strategy, filings or such transactions and (iiiv) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission cooperate with a Governmental Authority each other in connection with any such filing (including, to the Transactions extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority under any of the Antitrust Laws with respect to stay, toll or extend any applicable waiting period under the HSR Act such filing or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) such transaction. Each of the parties hereto such party shall use its reasonable best efforts to (i) cooperate in all respects with furnish to each other all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the transactions contemplated hereby. Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation or other inquiry without giving the other parties hereto reasonable prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to Applicable Law, the parties hereto will consult and cooperate with one another in connection with any filinganalyses, submission appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or substantive written communication with submitted by or on behalf of any party hereto relating to proceedings under any of the Antitrust Laws. In furtherance of the foregoing, Parent and the Company shall consult in good faith regarding strategy for obtaining approvals or expiration or termination of any waiting period under applicable Antitrust Laws; provided, in the event of a Governmental Authority dispute between Parent and the Company, the final determination regarding such strategy shall be made by Parent; provided, further, that in no event shall the Company or any of its Affiliates agree to any term, condition, obligation, liability, requirement, limitation, qualification, remedy, commitment, sanction or other action in connection with the Transactions expiration of any such waiting period or obtaining of any such consent, registration, approval, permit or authorization that is not conditioned upon the consummation of the transactions contemplated by this Agreement without the prior written consent of Parent. Any party may, as it deems advisable and in connection with necessary, reasonably designate any investigation or other inquiry by or before a Governmental Authority relating competitively sensitive material provided to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects under this Section 8.1 as “outside counsel only”. Such materials and on a reasonably timely basis the information contained therein shall be given only to the outside legal counsel of any material communication received the recipient and will not be disclosed by such party fromoutside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in advance from the providing party. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.
(c) In furtherance of the foregoing, Parent shall (i) take any and all action necessary, including (A) selling or otherwise disposing of, or given by such party toholding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Antitrust Division Company or Parent or their respective Subsidiaries, (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (C) terminating any venture or other arrangement, (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or (E) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries or restricting the Company or Parent or their respective Subsidiaries’ ability to operate their respective businesses (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with the Federal Trade Commission, the Department of Justice (Justice, any attorney general of any state of the “DOJ”)United States, the Federal Trade Commission (the “FTC”), FERC any other competition authority of any jurisdiction or any other Governmental Authority and of any material communication received or given (collectively, “Antitrust Authority”) in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to foregoing and in the exchange case of information, and to the extent reasonably practicable, consult with the other parties hereto actions by or with respect to information relating the Company or its Subsidiaries or its or their businesses or assets by consenting to such action by the other parties hereto Company and their respective Subsidiariesprovided, as that, any such action may, at the case may bediscretion of the Company, be conditioned upon consummation of the Merger) (each, a “Divestiture Action”) and to ensure that appears in no Governmental Authority enters any filing made withorder, decision, judgment, decree, ruling, injunction (preliminary or permanent), or written materials submitted toestablishes any law, any third Person or any Governmental Authority in connection with the Transactionsrule, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority regulation or other Personaction preliminarily or permanently restraining, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, enjoining or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and prohibiting the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance Merger or to ensure that no Antitrust Authority with the New Jersey Industrial Site Recovery Actauthority to clear, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and authorize or otherwise approve the consummation of the Transactions)Merger, fails to do so by the End Date; and (ii) not acquire by it or its Affiliates of any interest in any Person that primarily derives revenues from lines of business in the United States similar to the Company’s travel centers, if such action would make it materially more likely that there would arise any impediments under any Antitrust Law that may be asserted by any Governmental Authority to the consummation of the transactions contemplated hereby as soon as reasonably practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law, Parent shall take all action necessary, including causing any Divestiture Action to avoid or resolve such action. In the Company event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to execute an “ISRA Remediation Certification” form and to establish be entered in any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance proceeding that would make consummation of the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, transactions contemplated hereby in accordance with the terms of Section 10.05(c) this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated hereby, Parent shall take as reasonably promptly as practicable any and using a licensed site remediation professional reasonably acceptable all steps necessary to Purchaser.
(h) Notwithstanding anything vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. The Company shall cooperate with Parent and shall use commercially reasonable efforts to assist Parent in resisting and reducing any Divestiture Action. Notwithstanding any of the foregoing or anything contrary in this Agreement, nothing in this Agreement shall require Parent to (1) take any Divestiture Action if doing so would result in Parent, the Seller and its Affiliates shall have no obligation to pay money Company or offer or make any concession or grant any accommodation their respective subsidiaries divesting (financial by way of sale, separation or otherwise) any business or assets if the aggregate annual revenues generated from such businesses or assets in 2022 exceeds $175,000,000.00 or (2) otherwise take or commit to take any Governmental Authority or other third party Divestiture Actions that together with actions in connection clause (1) would be reasonably likely to result in a loss of aggregate annual revenues (expressed as a positive number) together with the performance an increase in aggregate annual expenses of their respective obligations under this Section 7.01Parent and its Subsidiaries, taken as a whole, in excess of $175,000,000.00.
Appears in 1 contract
Sources: Merger Agreement (TravelCenters of America Inc. /MD/)
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties and the Seller use (and shall use cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to (i) cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner as promptly as reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, declarations, submissions of information, applications applications, reports and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and Transactions, (iii) executing execute and delivering deliver any additional instruments necessary to consummate the Transactions and (iv) defend or contest in good faith any Action brought by any Person (including any Governmental Authority) or any Judgment that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, declarations, submissions of information, applications applications, reports and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations or matters relating to Antitrust Laws or Investment Screening Laws, which are dealt with in Section 7.01(b), (cSections 5.03(c) and (d) below. Notwithstanding the foregoing, nothing in this Section 5.03(a) shall require any party to make any concessions (as opposed to those matters dealt with in Sections 5.03(c) and (d) below, which are not the subject of this Section 5.03(a)).
(b) Each In furtherance and not in limitation of the foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) In furtherance and not in limitation of the foregoing, each of the parties hereto agrees to shall (i) make make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event within 10 business days following the date hereof, (ii) file, or make initial contact, with the relevant agency, as required under the applicable foreign Antitrust Laws that are Other Regulatory Approvals in connection with the Merger Transactions, as promptly as reasonably practicable and in any event by the first business day after the 30th calendar day following the date hereof and make the filings required with respect to filings made pursuant to any such foreign Antitrust Laws that are Other Regulatory Approvals as promptly as reasonably practicable after making such initial contact, (iii) prepare and file the HSR Act within ten (10) calendar days, provided, initial notifications required under Investment Screening Laws that are Other Regulatory Approvals in connection with the obligation to make such filings shall be automatically extended on a day-for-Merger Transactions as promptly as reasonably practicable and in any event by the first business day basis for each after the 45th calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)hereof, or earlier if legally required, and (iiiv) supply as promptly as reasonably practicable any additional information and documentary material that may be requested by the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority pursuant to any Antitrust Law, Investment Screening Law or Law with respect to a Required Approval. Each of the HSR Act and such other Antitrust Laws and to parties shall, as promptly as reasonably practicable, take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents consents under any Antitrust Laws or Investment Screening Laws or Law with respect to a Required Approval that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Outside Date.
(c) . Without limiting the foregoing, the Purchaser and the Seller shall, and Parent shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable take all actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required necessary to (i1) proffer secure the expiration or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships applicable waiting period under the HSR Act or, with respect to any Other Regulatory Approval, any other Antitrust Law or contractual rights of the Transferred Entities)Investment Screening Law, (ii2) proffer or consent to obtain the Other Regulatory Approvals and (3) resolve any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have objections asserted with respect to the Transactions under any applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the Transactions (the expirations, terminations, approvals and resolutions described in clauses (1) through (3) or elsewhere in this Section 5.03(c), the “Required Approvals”), including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Parent and its Subsidiaries, (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time, (D) permitting the Company to sell, divest or otherwise convey or hold separate any of the actions described particular assets or categories of assets or businesses of the Company or any of its Subsidiaries prior to the Effective Time, (E) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (F) terminating any joint venture or other arrangement, (G) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries or (H) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the FTC, the DOJ or any other Governmental Authority in connection with any of the foregoing clause (i), (ii) any such action described or (iii) an “Antitrust Remedial Action”contemplated by this sentence or elsewhere in this Section 5.03(c), other than any Antitrust the first sentence hereof, a “Remedial Action”) and, in the case of Remedial Actions that (A) solely apply by or with respect to the Business from Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action); provided that any such action may, at the discretion of the Company or Parent, be conditioned upon the Closing) and after (ii) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint that would prevent the Closing prior to the Outside Date (this clause (ii), “Regulatory Litigation”). No Remedial Actions taken in accordance with and (B) individually pursuant to this Section 5.03 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or in the aggregate, would not reasonably be expected to be material occur. Parent shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Business, taken as a wholeTransactions. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser In connection with the efforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e), Parent shall (i) have the right, in regular consultation with the Company and after considering in good faith the Company’s views, to direct and control all such matters with any Governmental Authority consistent with its obligations hereunder, including devising and implementing the strategy for obtaining any Consents such approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions; provided that Transactions as well as the Purchaser shall consult manner in good faith which to contest or otherwise respond to any objections or Actions challenging such approvals, consents, registrations, waivers, permits, authorizations, orders or other confirmations. In connection with the Seller regarding such strategyefforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e) to obtain the Required Approvals as promptly as reasonably practicable, Parent shall have the right to a reasonable period in which to engage with Governmental Authorities and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in discuss any filing or submission with objections that a Governmental Authority in connection raises with respect to the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating which to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider attempt in good faith to resolve, narrow or overcome such objections, the views extent of such other party with respect reasonable period being dependent on the facts and circumstances but it being understood that it shall be reasonable to continue such filing, submission, or substantive written communication, (ii) keep discussions and engagement during any review of the other parties hereto informed Transactions by such Governmental Authority provided in all material respects cases such discussions and on engagement conclude at a reasonably timely basis of time that, taking into account the period required to successfully defend any material communication received by such party fromRegulatory Litigation, or given by such party towill enable the parties to consummate the Merger prior to the Outside Date. For purposes hereof, “Antitrust Laws” means the ▇▇▇▇▇▇▇ Act, the Antitrust Division of ▇▇▇▇▇▇▇ Act, the Department of Justice (the “DOJ”)HSR Act, the Federal Trade Commission (the “FTC”)Act, FERC or any all applicable foreign antitrust Laws and all other applicable Laws issued by a Governmental Authority and that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of any material communication received monopolization or given in connection with any proceeding by a private Person, in each case regarding any restraint of the Transactions, (iii) subject to applicable Laws relating to the exchange trade or lessening of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, competition through merger or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” acquisition and “Plans and ReportsInvestment Screening Laws” as those terms are used in the rules and regulations under the HSR Actmeans applicable supranational, and (iv) national, federal, state, provincial or local Laws designed or intended to the extent permitted prohibit, restrict or regulate investment made by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites Person into business interests located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seqa foreign country., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller other Transaction Documents, each party shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable desirable under Applicable Law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(d), use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (as determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents, or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with -11- the transactions contemplated by this Agreement and filing the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and fully all documentation to effect all necessary filingsadvisable, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other party in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents, or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the parties hereto agrees foregoing, and only to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law), (i) make an appropriate filing of a as promptly as practicable after written notice from Amazon, and in any event no later than in accordance with established regulatory time frames, the parties shall file any Notification and Report Form pursuant to Forms required under the HSR Act with respect to the Transactions Federal Trade Commission and the United States Department of Justice and (which ii) as promptly as practicable after written notice from Amazon, the parties shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any file, make or give, as applicable, all other filings, requests or notices required notification under any other Antitrust Laws Laws, in each case with respect to the issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). In addition, following the receipt of the Initial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make, or give, as applicable, as promptly as reasonably practicable following and advisable (as determined in good faith by Amazon after consultation with the date Company in accordance with the first sentence of this AgreementSection 3.1(d)), (and in any event with respect to filings made pursuant to further required filings, requests or notices required under any Antitrust Laws, including the HSR Act within ten (10) calendar daysAct. Without limiting the generality of the foregoing, provided, that the obligation to make such filings each party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested required pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Laws. For purposes of this Agreement, the term “Initial Antitrust Clearance” as of any time means (x) prior to such time, the expiration or enter into a timing agreement with any Governmental Authority, without the prior written consent termination of the other party.
(e) Each waiting period under the HSR Act and the receipt of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filingexemptions, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsauthorizations, including any proceeding initiated by a private person, allow the other party to review such filing, submissionconsents, or substantive written communication in advanceapprovals, the making of all filings and the giving of all notices, and consider in good faith the views expiration of such other party with respect all waiting periods, pursuant to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonAntitrust Laws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating to the other parties hereto and their respective SubsidiariesInitial Filing Transaction, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control absence at such time of any Remedial Action with respect to Applicable Law or Order issued by any Non-Legacy Environmental Liability required to comply with ISRAcourt of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in accordance with each case that has the terms effect of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserpreventing the consummation of any issuances of Warrant Shares.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this AgreementSection 7.2(e), the Purchaser and the Seller each Party shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and desirable under Law to consummate and make effective, in the most expeditious manner practicable, effective the Transactions, including (i) preparing and filing as promptly and fully as practicable with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect pursuant to any Permits, including Environmental Permits), Laws; (ii) obtaining using reasonable best efforts to obtain any required consents, approvals or authorizations under the HSR Act; and (iii) using reasonable best efforts to obtain and maintain all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party pursuant to any Laws, in each case, that are necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments necessary to consummate collectively, the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d“Regulatory Approvals”).
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of the Parties shall, and shall cause their respective Affiliates to, (i) make an appropriate filing or cause to be made all filings required of a Notification each of them or any of their respective Affiliates under the HSR Act with respect to the Transactions as promptly as practicable and Report Form pursuant within ten (10) Business Days after the date hereof, (ii) make or cause to be made all filings required or advisable of each of them or any of their respective Affiliates under any non-U.S. Laws similar to the HSR Act with respect to the Transactions as promptly as practicable, (which shall request iii) use reasonable best efforts to provide as promptly as practicable any additional information that is reasonably requested by any Governmental Authority in respect of such filings or the early termination Transactions and (iv) cooperate with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of any waiting period applicable to the Transactions Governmental Authority under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event Act with respect to filings any such filing or the Transactions; provided that the Parties understand and agree that no Party shall be obligated to (and, without each Party’s prior written consent, no Party shall): comply with any request under the HSR Act for additional information, documents or other materials (i.e., a “second request”).
(c) Each Party shall use its reasonable best efforts to furnish to the other Parties all information required for any application or other filing to be made pursuant to the HSR Act within ten or other Laws in connection with the Transactions. Each Party will advise the other Parties promptly (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event within two (2) Business Days prior to the Termination Date.
(ccommunicating such agreements with any Governmental Authority) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships understandings, undertakings or contractual rights of the Transferred Entities), agreements (iioral or written) proffer or consent that such Party proposes to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of make or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that . Each Party shall promptly inform the Purchaser shall consult in good faith with the Seller regarding such strategyother Parties of any oral communication with, and (ii) coordinate provide copies of written communications with, any Governmental Authority regarding any such filing or the overall development Transactions. No Party shall independently participate in any meeting with any Governmental Authority in respect of any such filing or any investigation or other inquiry with respect to the Transactions without giving the other Parties prior notice of the positions meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend or participate. Subject to applicable Law, the Parties will consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to proceedings under the HSR Act or other regulatory Laws with respect to the Transactions. Each Party shall have the right to (i) review and approve in advance, with such approvals not to be taken and the regulatory actions unreasonably withheld or delayed, all filings with any Governmental Authority to be requested in any filing or submission with a Governmental Authority made jointly in connection with the Transactions and (ii) review and comment on in connection advance, with any investigation or other inquiry or litigation such comments to be considered by or beforethe filing Party in good faith, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree filings with any Governmental Authority to be made by the other Parties in connection with the Transactions. Notwithstanding the foregoing, any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 7.2 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside counsel of the receiving Party, and the receiving Party shall cause such outside counsel not to disclose such materials or information to any employees, officers, directors or other representatives of the receiving Party, unless express written permission is obtained in advance from the source of the materials. Notwithstanding anything to the contrary set forth herein, nothing in this Agreement shall require any Party to provide to any other Party any information or materials that are sensitive personally identifiable information or legally privileged.
(d) Subject to Section 7.2(e), in furtherance and not in limitation of the actions and obligations of each Party set forth in this Section 7.2, each Party shall, and shall cause its Affiliates to, use its respective reasonable best efforts to promptly resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the Transactions under the HSR Act so as to enable Closing as promptly as practicable but, in any event, no later than the Outside Date; provided that no Party shall be required to institute (or threaten to institute) any Proceeding to defend the Transactions, and if any Proceeding is instituted (or threatened to be instituted) challenging the Transactions as in violation of the HSR Act or any other Laws, no Party shall be obligated to contest and resist any such Proceeding (including that no Party shall be required to pursue any available avenues of administrative and judicial appeal). Each Party shall, and shall cause its Affiliates to, use its respective reasonable best efforts to take such action as may be required to cause the expiration or termination of the waiting, notice or review periods under the HSR Act with respect to the Transactions as promptly as possible after the execution of this Agreement, and each Party shall not (and shall cause its Affiliates not to) take any action (including any other acquisition or any agreement for any other acquisition) that would be reasonably likely to prevent or materially delay the receipt of any Regulatory Approvals. None of the Parties shall stay, toll toll, or extend any applicable waiting period under the HSR Act, or pull or refile any filing made under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior advance written consent agreement of the other partyParties.
(e) Each of the parties hereto Party further agrees that it shall, and shall cause its Affiliates to, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with obtain any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsnecessary Regulatory Approval, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, or pursuant to any Laws to the extent required to satisfy the conditions set forth in Section 8.1, Section 8.2 or Section 8.3, as applicable (provided that the reasonable best efforts of a Party shall not obligate a Party to waive any such condition), and to use reasonable best efforts to try to avoid the commencement of any Proceeding by any Governmental Authority seeking, or the entry of, any writ, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would result in, or to have lifted, vacated, reversed or terminated, any writ, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Transactions; provided that the Parties understand and agree that no Party nor any of its Affiliates shall be obligated to (and, without each Party’s prior written consent (not to be unreasonably withheld), no Party shall) (i) propose, negotiate, offer to commit or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license or other disposition of any assets or businesses of the Business Entities, Buyer or any of their respective Affiliates (including equity interests held by Buyer or any of its Affiliates in entities with assets or businesses); (ii) propose, negotiate, offer to commit or effect, by consent decree, hold separate order or otherwise, behavioral limitations on any assets or businesses of the Business Entities, Buyer or any of their respective Affiliates (including equity interests held by Buyer or any of its Affiliates in entities with assets or businesses); (iii) propose, negotiate, offer to commit or effect, by consent decree, hold separate order or otherwise, the termination, modification, transfer or other action with respect to any existing relationships and contractual rights and obligations of the Business Entities, Buyer or any of their respective Affiliates; (iv) otherwise offer to take or offer to commit to take any action that it is capable of taking that limits or affects its freedom of action; and (v) in the event that any writ, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, issued by any Governmental Authority is entered or becomes reasonably foreseeable to be entered in any Proceeding that would make consummation of the Transactions unlawful or that would prevent or delay consummation of the Transactions, take any steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by clauses (i), (ii), (iii) and (iv) above) necessary to the extent permitted by the FTCvacate, the DOJmodify or suspend such writ, FERC or such other applicable Governmental Authority decree, judgment, injunction or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferencesorder.
(f) In furtherance Whether or not the Closing occurs, Buyer shall be responsible for the payment of all applicable filing fees under the obligations set forth in Section 7.01(a) HSR Act and otherwise subject all non-U.S. Laws similar to the terms HSR Act, and each of this Section 7.01, the Seller Buyer and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions Sellers shall be made as soon as practicable, but in no event later than ten (10) calendar days after responsible for the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu payment of such required source or assurance) as necessary to consummate the Transactions (Party’s own legal and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserconsulting fees.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Royalty Pharma PLC)
Efforts. (a) Subject to Each of the terms and conditions of this Agreement, the Purchaser Company and the Seller shall use their respective reasonable best efforts (unlessPurchasers shall, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactionsand, in the case of the Company, shall cause each of clauses its Subsidiaries to, use its reasonable best efforts to: (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following practicable, obtain from any governmental approval (including H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ approval) required to be obtained or made by the date Company or any of their Subsidiaries in connection with the authorization, execution and delivery of this Agreement, (Agreement and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that consummation of the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), transactions contemplated hereby; and (ii) supply as promptly as reasonably practicable practicable, make all necessary filings, notifications, and thereafter make any additional information other required submissions, with respect to this Agreement required under the Exchange Act, any other applicable federal or state securities laws or any other applicable law. Each of the Company and documentary material that may be requested pursuant the Purchasers agree to the HSR Act and such other Antitrust Laws and use commercially reasonable efforts to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be actions required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto order to consummate the Transactions as promptly as reasonably practicable and transactions contemplated in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser this Agreement and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Stockholders Agreement, the Purchaser (and its Affiliates) shall not be required to including, without limitation: (i) proffer to obtain from any third party any consents, licenses, Permits, waivers, approvals, authorizations or consent orders required to a Judgment be obtained or consent order providing for made by the sale Company or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority Subsidiaries in connection with the Transactions; provided that authorization, execution and delivery of this Agreement and the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development consummation of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority transactions contemplated hereby (provided, however, that in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authoritytherewith, without the prior written consent of the other party.
(e) Each Purchasers, none of the parties hereto shall use Company or its reasonable best efforts Subsidiaries will make or agree to (i) cooperate in all respects with each other in connection with make any filing, submission payment or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with accept any investigation material conditions or other inquiry by or before a Governmental Authority relating to the Transactionsobligations, including amendments to existing conditions and obligations); and (ii) execute or deliver any proceeding initiated by a private personadditional instruments necessary to consummate the transactions contemplated by, allow and to fully carry out the other purposes of, this Agreement. Each party shall have the right to review such filing, submission, or substantive written communication in advance, and consider in good faith to the views of such other party extent practicable each will consult with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personother, in each case regarding any of the Transactions, (iii) subject to applicable Laws laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person party or any Governmental Authority governmental or regulatory entity in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and transactions contemplated by this Agreement (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject reports required to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed filed by the Company as with the responsible party and (B) SEC between the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement date hereof and the consummation of the TransactionsClosing), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller other Transaction Documents, each party shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable desirable under Applicable Law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to be satisfied the provisions of this Section 3.1, use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (as determined in good faith by Walmart after consultation with the Company in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and fully all documentation to effect all necessary filingsadvisable, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other party in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the parties hereto agrees foregoing, and only to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law), (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementafter written notice from Walmart, (and in any event no later than in accordance with respect to filings made pursuant to established regulatory timeframes, the parties shall file any Notification and Report Forms required under the HSR Act within ten (10) calendar days, provided, that with the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a Federal Trade Commission and the United States federal government shutdown following Department of Justice (the date of this Agreement)on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date if required”) and (ii) as promptly as reasonably practicable after written notice from Walmart, file, make or give, as applicable, all other filings, requests or notices required under any other Antitrust Laws, in each case with respect to the exercise of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). Walmart shall be responsible for payment of all filing fees associated with the HSR Act and any other Antitrust Laws. In addition, following the receipt of the Initial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further exercise of Warrant Shares (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as reasonably practicable and advisable (as determined in good faith by Walmart after consultation with the Company in accordance with the first sentence of Section 3.1(d)), any further required filings, requests or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings”). Without limiting the generality of the foregoing, each party shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested required pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Laws. For purposes of this Agreement, the term “Initial Antitrust Clearance” as of any time means (x) prior to such time, the expiration or enter into a timing agreement with any Governmental Authority, without the prior written consent termination of the other party.
(e) Each waiting period under the HSR Act and the receipt of all exemptions, authorizations, consents or approvals, the parties hereto shall use its reasonable best efforts to (i) cooperate in making of all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with filings and the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advancegiving of all notices, and consider in good faith the views expiration of such other party with respect all waiting periods, pursuant to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonAntitrust Laws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Initial Filing Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (ivy) to the extent permitted absence at such time of any Applicable Law or Order issued by the FTC, the DOJ, FERC or such other applicable Governmental Authority any court of competent jurisdiction or other Personlegal restraint or prohibition under any Antitrust Law, give in each case that has the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance effect of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and preventing the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seqInitial Filing Transaction., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties shall cooperate with the other parties and the Seller use (and shall use cause their respective controlled Affiliates to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to to, as promptly as reasonably practicable, (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, as promptly as reasonably practicable (and, in any event, prior to the most expeditious manner practicableOutside Date), the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary necessary, proper and advisable filings, notices, petitions, statements, registrations, declarations, submissions of information, applications applications, reports and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any approvals, consents, registrations, waivers, Permits, including Environmental Permits) authorizations, exemptions, clearances, orders and other confirmations from any Governmental Authority or third party (including under any Contracts) necessary, proper or advisable to consummate the Transactions and Transactions, (iii) executing execute and delivering deliver any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) Transactions and (d)iv) defend or contest in good faith any Proceeding brought by any Governmental Authority or a third party or any Judgment that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions.
(b) Each Parent shall solely (i) control the timing and strategy for obtaining any approvals, consents, registrations, waivers, Permits, authorizations, exemptions, clearances, orders and other confirmations from any Aviation Regulators in connection with the Transactions and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with an Aviation Regulator in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, an Aviation Regulator relating to the Transactions and of all other regulatory matters incidental thereto, including any notice filing with the DOT regarding a substantial change in operations, ownership or management under 14 C.F.R. § 204.5 and the ownership structure of Parent that supports the necessary finding that Parent is a “citizen of the United States” as defined in 49 U.S.C. §40102(a)(15) and fit to be the holder of necessary DOT permits and authority; provided that, in each case, Parent shall, in good faith, take into consideration the Company’s views, suggestions and comments regarding nonconfidential strategy, efforts and positions to be taken and regulatory actions requested in any filing or submission with an Aviation Regulator. Parent shall, subject to Section 5.03(a), Section 5.03(c), and Section 5.3(d), solely control the timing and strategy for obtaining any other approvals, consents, registrations, waivers, Permits, authorizations, exemptions, clearances, orders and other confirmations from any other Governmental Authorities in connection with the Transactions (including, for the avoidance of doubt, any such approvals required by applicable Antitrust Laws, Aviation Regulations and Foreign Direct Investment Laws) and coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with such other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, any such other Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto, including the final content of any substantive communications with any applicable Governmental Authority with respect to obtaining approval or expiration of any waiting period under the HSR Act and any applicable Antitrust Laws, Aviation Regulations and Foreign Direct Investment Laws; provided that Parent shall, in good faith, take into consideration the Company’s views, suggestions and comments regarding nonconfidential strategy, efforts and positions to be taken and regulatory actions requested in any filing or submission with such other Governmental Authority.
(c) In furtherance and not in limitation of the foregoing, each of the parties hereto agrees to (i) make (and shall cause their respective controlled Affiliates to make or, if required pursuant to the HSR Act, cause their ultimate parent entity (as that term is defined in the HSR Act) to make) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown Business Days following the date of this Agreementhereof (unless the applicable rules governing the form and information required in such filings under the HSR Act, issued on October 10, 2024, are in effect at the time such a filing would have to be made, in which case it shall be made as promptly as reasonably practicable), and to supply (iiand shall cause their respective controlled Affiliates or, if required pursuant to the HSR Act, cause their ultimate parent entity (as that term is defined in the HSR Act) supply to supply) as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act Act, (ii) make (and such other Antitrust Laws shall cause their respective Affiliates to make) all appropriate filings pursuant to Aviation Regulations with respect to the Transactions, including any notice filing with the DOT regarding a substantial change in operations, ownership or management under 14 C.F.R. § 204.5 and the ownership structure of Parent that supports the necessary finding that Parent is a “citizen of the United States” as defined in 49 U.S.C. §40102(a)(15) and fit to be the holder of necessary DOT permits and authority, as promptly as reasonably practicable following the date of this Agreement, and in any event within fifteen (15) Business Days following the date hereof, and to supply (and shall cause their respective Affiliates to supply) as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the Aviation Regulations, (iii) make (and shall cause their respective Affiliates to make) all filings and submissions under the Foreign Direct Investment Laws set forth in Section 6.01(b) of the Company Disclosure Letter with respect to the Transactions as promptly as reasonably practicable following the date of this Agreement, and to supply (and shall cause their respective controlled Affiliates to supply) as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the Foreign Direct Investment Laws, and (iv) promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents consents under any Antitrust Laws, Aviation Regulations (including, for the avoidance of doubt, receipt of the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter) and Foreign Direct Investment Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case case, with competent jurisdiction jurisdiction, and to satisfy the conditions set forth in Article VI, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and (and, in any event event, prior to the Termination Outside Date.
(c) ). Without limiting the foregoing, the Purchaser and the Seller shall, Parent shall promptly take (and shall cause their respective controlled Affiliates to usetake and, reasonable best efforts solely with respect to cooperate clause (A)(7) below to address specific requests from the Aviation Regulators, shall cause the Equity Commitment Party and, solely for this purpose, (x) any current or future direct or indirect Subsidiaries of the Equity Commitment Party that own or hold, or are contemplated by the Equity Commitment Party to own or hold, any direct or indirect interest in good faith Parent or MergerCo and (y) Parent and its current or future Subsidiaries, to take, with respect to Parent, MergerCo, any entity referred to in the preceding clause (x), and each of their respective current or future Subsidiaries, other than with respect to any other (i.e., other than those referred to in the foregoing clause (x) or (y)) current or future direct or indirect Subsidiaries of the Equity Commitment Party) all actions necessary to secure the expiration or termination of any applicable waiting period or obtain any approvals, consents, registrations, waivers, Permits, authorizations, exemptions, clearances, orders and other confirmations, as applicable, under the HSR Act or any other Antitrust Law, Aviation Regulations (including, for the avoidance of doubt, receipt of the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter) or any Foreign Direct Investment Law and resolve any objections asserted with respect to the Transactions under any such Law raised by any Governmental Authorities Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint (including the absence of the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter) that would prevent, prohibit, restrict or delay the consummation of the Transactions (including due to the failure to satisfy the condition set forth in Section 6.01(b)(ii)), including (A) (1) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (2) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Parent and undertake its Subsidiaries, (3) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time, (4) terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries, (5) creating any relationship, contractual right or obligation of the Company or its Subsidiaries, (6) effectuating any other change or restructuring of the Company or its Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority under any Antitrust Law, Aviation Regulations or Foreign Direct Investment Law in connection with any of the foregoing and, in the case of actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action); provided that any such action shall be conditioned upon the Closing), or (7) taking such actions as may be necessary to (x) ensure that, at the Closing, Parent and MergerCo are, and are controlled by, a “citizen of the United States” as defined in 49 U.S.C. §40102(a)(15) of the Federal Aviation Act and as interpreted by DOT and (y) address any other specific requests from the Aviation Regulators in order to obtain the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter and (B) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint (including the absence of the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter) under any Antitrust Law, Aviation Regulations or Foreign Direct Investment Law that would prevent the Closing prior to the Outside Date then in effect (including due to the failure to satisfy the condition set forth in Section 6.01(b)(ii)). Without limiting the foregoing, in no event shall the Company (and the Company shall cause its Subsidiaries and its and their respective Representatives to not) propose, negotiate, effect or agree to any such actions (other than actions otherwise permitted by Section 5.01) without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed). No actions taken pursuant to this Section 5.03 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Parent shall respond to and seek to resolve as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that objections asserted by any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholeTransactions. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser Company shall not commit (iand shall cause its controlled Affiliates not to commit) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period or review period (including any “pull and refile” of any filing or application) under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental AuthorityAuthority under any Laws, without the prior written consent of Parent. Notwithstanding anything to the contrary, except as expressly specified in Section 5.03(d) and Section 5.03(c)(A)(7), Parent shall not be obligated (and nothing in this Section 5.03(c) or otherwise in this Agreement shall be deemed to obligate its Affiliates) to take any action contemplated by this Section 5.03 with respect to Stonepeak Partners LLC and its Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, any of the foregoing (collectively, “Stonepeak”), or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Stonepeak, other partythan Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries following the Closing), other than the making of filings with or submissions to, the supply of information or documentation to, or communications with, Governmental Authorities in order to obtain any consents, approvals or other clearances required to satisfy the condition to Closing set forth in Section 6.01(b), in each case, to the extent required pursuant to any Antitrust Law, Aviation Regulations or Foreign Direct Investment Laws.
(d) Parent and MergerCo shall not, and Parent shall cause the Equity Commitment Party and (x) any direct or indirect Subsidiary special purpose or pooled capital investment vehicles of the Equity Commitment Party, (y) any direct or indirect Subsidiaries of the Equity Commitment Party that own or hold, or are contemplated by the Equity Commitment Party to own or hold, an interest in Parent and MergerCo and (z) Parent and its Subsidiaries not to, acquire or agree to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise), in each case, with the intention to, or if such action would reasonably be expected to, prevent or materially delay (i) the expiration or termination of any waiting period under the HSR Act or any other Antitrust Laws, Aviation Regulations or Foreign Direct Investment Laws, (ii) obtaining approval of any Governmental Authority under Antitrust Laws, Aviation Regulations or Foreign Direct Investment Laws or (iii) the receipt of any clearance pursuant to any Antitrust Laws, Aviation Regulations or Foreign Direct Investment Laws to this Agreement or the Transactions or the consummation of the Transactions contemplated hereby, including the receipt of the DOT determination referred to in Section 6.01(b) of the Company Disclosure Letter.
(e) Each In furtherance and not in limitation of the foregoing, each of the parties hereto shall use (and shall cause their respective controlled Affiliates to use) its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.eff
Appears in 1 contract
Sources: Merger Agreement (Air Transport Services Group, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including Section 7.1(i), each of the Purchaser Company and the Seller Parent shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, the following actions and do, or cause to be done, and assist and cooperate with the other parties in doing, all incidental things necessary, proper or advisable under applicable Law to cause consummate and make effective the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as promptly as practicable and to consummate and make effective, in after the most expeditious manner practicable, the Transactions, including date of this Agreement: (i) preparing and filing filing, in consultation with the other Parties, as promptly and fully as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining and maintaining (and cooperating with each other to obtain or maintain) all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Transactions Merger and the other transactions contemplated by this Agreement (iiiincluding the Station Divestiture) executing and delivering any additional instruments necessary to consummate the Transactions(whether or not such approvals, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statementsconsents, registrations, submissions of informationpermits, applications authorizations and other Consents relating confirmations are conditions to Antitrust Lawsthe consummation of the Merger pursuant to Article VIII); provided, which are dealt with however, that, except as expressly provided in this Agreement, no party shall be required to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of the Company or its Subsidiaries shall pay or agree to pay) any fee, penalty or other consideration to any other Third Party (other than any filing fees paid or payable to any Governmental Authority) for any approval, consent, registration, permit, authorization or other confirmation required for the consummation of the transactions contemplated by this Agreement; provided, further, that the Parties agree and acknowledge that, except as provided in Section 7.01(b8.1(b) and Section 8.2(d), (c) and (d)receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable (i) make an appropriate filings of Notification and Report Forms pursuant to the HSR Act with respect to the transactions contemplated by this Agreement; provided that the filing by each of Parent and the Company of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions Merger shall be made within ten (which shall request the early termination 10) Business Days of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company, and (and in any event ii) the FCC Applications with respect to filings made pursuant the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the HSR Act Merger shall be made within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days of the date of this Agreement), unless a later date is agreed to in writing by both Parent and (ii) supply as the Company. Each of the Company and Parent shall respond promptly as reasonably practicable any to all requests for additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local a Governmental Authority, in and shall comply promptly with such requests unless the Parent and Company agree with each case with competent jurisdiction other to defer compliance, and shall use reasonable best efforts to take all other actions necessary and appropriate to obtain all necessary approvals and to cause the expiration or termination of applicable waiting periods as soon as practicable so as to enable permit consummation of the parties hereto to consummate the Transactions contemplated transactions as promptly soon as reasonably practicable and in any event prior to the Termination Datepracticable.
(c) Without limiting The Company and Parent shall each request early termination of the foregoing, waiting period with respect to the Purchaser Merger and the Seller Station Divestiture, if applicable, under the HSR Act and neither Parent nor the Company shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully without the Transactions prior to written consent of the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to other: (i) proffer or consent to a Judgment or consent order providing for pull and refile any notification under the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities)HSR Act, (ii) proffer or consent agree to extend any other restrictionwaiting period, prohibition or limitation on the ownership or operation of (iii) enter into any of such assets or lines of businessestiming agreement with any Governmental Authority, or (iiiiv) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that agree with any Governmental Authority may have with respect not to consummate the Transactions (transactions contemplated by this Agreement for any period of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actionstime.
(d) Nothing in this Agreement shall require any party to take Except as prohibited by applicable Law or agree to take any action with respect to its business or operations unless Order, each of Parent and the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser Company shall (i) control the strategy for obtaining any Consents from any Governmental Authority cooperate and consult with each other in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private personparty, allow including by allowing the other party Party to have a reasonable opportunity to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views comment on drafts of such other party with respect to such filing, submission, or substantive written communicationfilings and submissions, (ii) keep promptly inform the other parties hereto informed Party of (and if in all material respects and on a reasonably timely basis of writing, supply to the other Party) any material substantive or procedural communication received by such party Party from, or given by such party Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (Commission, the “FTC”)DOJ, FERC the FCC or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the each other parties hereto prior to taking any material position with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations filings under the HSR Act, the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act, the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act, the Communications Act and the FCC Rules; provided, that documents or information required to be provided pursuant to this Section 7.1(d) (x) may be redacted as necessary (I) to comply with contractual arrangements, (II) to address good faith legal privilege concerns, or (III) to remove references concerning the valuation or alternative bidders, and (y) may be designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials.
(e) The Company and Parent acknowledge that, to the extent permitted reasonably necessary to expedite the grant by the FTCFCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the DOJCompany, FERC Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other applicable Governmental Authority enforcement matters against such Company Station with respect to which the FCC may permit the Company or other PersonParent (or any of their respective Subsidiaries) to enter into a tolling agreement. For each application for renewal of any Company Station License (a “Renewal Application”) that is pending on the date hereof or that must be filed prior to the grant of the FCC Consent, give Parent shall request in the other parties hereto prompt notice ofFCC Applications that the FCC apply its policy permitting the processing of transfer of control or assignment of FCC authorizations in transactions involving multiple stations notwithstanding the pendency of one or more Renewal Applications (the “FCC Renewal Policy”). Parent shall make such customary representations and agree to such customary undertakings in the FCC Applications as are reasonably required to invoke the FCC Renewal Policy, including undertakings to assume the position of the applicant before the FCC with respect to any pending Renewal Application and to assume the reasonable opportunity corresponding regulatory risks relating to attend and participate in, substantive meetings and conferencesany such Renewal Application.
(f) In furtherance If the Closing shall not have occurred for any reason within the original effective period of the obligations set forth in Section 7.01(a) FCC Consent, and otherwise subject neither party shall have terminated this Agreement pursuant to the terms of this Section 7.01hereof, the Seller Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the Purchaser effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to obtain approval from FERC maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesterms hereof.
(g) In connection with Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company Sites located and Parent shall (i) not participate in Pedricktownor attend any meeting, New Jerseyor engage in any substantive or procedural conversation, telephone call or video conference, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a))) without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto.
(h) Subject to Section 7.1(i), each of the Company and Parent shall use reasonable best efforts to take actions to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as possible, including (i) the parties acknowledge use of reasonable best efforts to avoid the entry of, or the commencement of any Proceeding in any forum that the execution of this Agreement and the could result in, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions will requiretransactions contemplated by this Agreement, including the proffer and agreement by Parent of its willingness to use such reasonable best efforts, and promptly to use such reasonable best efforts to undertake the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.Station Divestiture (as defined in Schedule 7.1(h)) and Approval Actions listed on Schedule 7.1(h), and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and use of reasonable best efforts to take, in compliance with ISRA (the “ISRA Filing”) within five days event that any permanent or preliminary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) kind that would make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactionstransactions contemplated by this Agreement (including the Station Divestiture) in accordance with its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement (including the Station Divestiture), any and all steps (including causing the Company to execute an “ISRA Remediation Certification” form appeal thereof and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide posting of a self guarantee in lieu of such required source or assurancebond) as necessary to consummate resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement. In furtherance of the Transactions (and provide Purchaser with a reasonable opportunity to review and comment foregoing, Parent shall take the actions described in advance on such filings and submissionsSchedule 7.1(h) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserthereof.
(hi) Notwithstanding anything herein to the contrary contrary, nothing set forth in this AgreementSection 7.1 or otherwise in this Agreement shall:
(i) require, or be construed to require the Seller and its Affiliates shall have no obligation to pay money Company, Parent or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations Subsidiaries to take, or agree to take, any Station Divestiture or Approval Action, unless such Station Divestiture or Approval Action shall be conditioned upon the consummation of the Merger;
(ii) require, or be construed to require Parent or any of its Subsidiaries to agree or propose to take or consent to the taking of any Station Divestiture, Approval Actions or any other actions contemplated by this Section 7.1, other than (x) the Station Divestiture and Approval Actions listed on Schedule 7.1(h); or
(iii) require the Company, SpinCo or its Subsidiaries that are SpinCo Entities (x) to sell, divest, dispose of, hold separate or otherwise limit its freedom of action with respect to any SpinCo Asset (as defined in the Separation and Distribution Agreement), (y) retain any RemainCo Asset or RemainCo Liability (as such terms are defined in the Separation and Distribution Agreement) unless (A) such retention would not reasonably be expected to prevent, impede or materially delay the Closing, (B) in the case of a RemainCo Asset, Parent agrees that the Company or SpinCo may retain such RemainCo Asset for no consideration or cost to the Company or SpinCo and (C) in the case of a RemainCo Liability, Parent agrees to fully reimburse and indemnify the Company or SpinCo, as applicable, against such RemainCo Liability, with the form and substance of the agreements by Parent referenced in each of the preceding clauses (B) and (C) to be reasonably satisfactory to the Company in its good faith determination.
(j) The Company shall use commercially reasonable efforts to obtain any third party consents required under any Company Material Contract. Schedule 7.1(j) identifies those consents the receipt of which is a condition precedent to Parent’s obligation to close under this Section 7.01Agreement (the “Required Consents”), subject to the terms of Schedule 7.1(j).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller Parties shall use (and Parent shall cause its Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws to cause consummate and make effective the conditions to Merger and the Closing to be satisfied other Transactions as promptly as practicable and in any event prior to consummate and make effective, in the most expeditious manner practicable, the TransactionsEnd Date, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals and expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, submissions of informationclearance or waiver from, applications and other documents (including with respect or to avoid an Action or Legal Proceeding by, any Permits, including Environmental Permits)Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties (including with respect to any Permitsother than Governmental Entities), including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing the defending of any Actions, lawsuits or other Legal Proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Merger and delivering the other Transactions, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Entity in connection with the foregoing vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions; provided, that in no event shall the Company be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the Transactions under any Contract or otherwise unless requested by Parent in writing, in which such case, it shall pay such fee, penalty or other consideration so long as such payment is conditioned on the case occurrence of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Closing.
(b) Each of Subject to the parties hereto agrees terms and conditions in this Agreement and without limiting the foregoing, the Company and Parent shall (and Parent shall cause its Subsidiaries to) (x) promptly, but in no event later than ten (10) Business Days after the date hereof, file or cause to (i) make an appropriate filing of a Notification be filed any and Report Form pursuant to all required notification and report forms under the HSR Act with respect to the Merger and the other Transactions; provided that there are no changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, in which instance the Company and Parent shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter, and (y) file or cause to be filed any and all notifications with respect to the Merger and the other Transactions as may be requested by any Governmental Entity under the Specified Laws promptly, but in no event later than twenty (which 20) Business Days, after receiving such request from the applicable Governmental Entity. Subject to Section 6.8(c), the Company and Parent shall request (and Parent shall cause its Subsidiaries to) use all reasonable best efforts to cause the early expiration or termination of any applicable waiting period applicable to the Transactions periods under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser . Parent and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall Company may not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority Entity to voluntarily stay, toll or extend any applicable HSR Act waiting period or review period, (ii) enter into any timing agreement with any Governmental Entity, or (iii) pull and refile any filing under the HSR Act or any other applicable Antitrust Laws Law or enter into a timing agreement with any Governmental Authoritythe Specified Laws, without the prior written consent of the other partyparty (not to be unreasonably withheld, conditioned or delayed).
(ec) Each In furtherance and not in limitation of the parties hereto foregoing, Parent and the Company shall use (and Parent shall cause its reasonable best efforts Subsidiaries to) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other Transactions, by taking all such further action as may be necessary to resolve such objections, and to avoid or eliminate each and every impediment, in each case, under the Specified Laws or any Antitrust Law that may be asserted by the United States Federal Trade Commission (“FTC”), the Antitrust Division of the United States Department of Justice (“DOJ,” and together with the FTC, the “U.S. Antitrust Agencies”), state antitrust enforcement authorities or any other Governmental Entity or Person with respect to the Merger and the other Transactions so as to enable the Closing to occur as promptly as practicable after the date hereof (and in any event no later than the End Date), including (i) supplying or causing to be supplied to any Governmental Entity as promptly as practicable any and all additional information or documentary material that may be requested, and certifying compliance with such request (as applicable), under any Law or by such Governmental Entity, (ii) terminating, transferring or creating relationships, contractual rights or other obligations of Parent (including its Subsidiaries) and the Company, and (iii) otherwise taking or committing to take any actions or agree to any undertakings that would limit Parent’s (including its Subsidiaries’, and the Surviving Corporation’s) freedom of action with respect to Parent’s (including its Subsidiaries’, and the Surviving Corporation’s) future operations with respect to, assets (whether tangible or intangible), businesses, divisions, personnel, operations, products or product lines or contractual or supply relationships of Parent (and its Subsidiaries, including the Surviving Corporation) or the Company, in each case so as to satisfy the conditions to the Closing or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Legal Proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date (each such action in the foregoing clauses (ii) and (iii), individually or collectively, a “Remedial Action”). Notwithstanding anything in this Agreement to the contrary, (i) the Company shall not be (x) required to or become subject to, or consent or agree to or otherwise take any Remedial Action or Divestiture Action unless such action is applicable to the Company only from and after the Effective Time or (y) permitted to offer or agree to or effectuate any Remedial Action or Divestiture Action without the prior written consent of Parent; (ii) Parent (or any of its Subsidiaries) shall not be required to: (x) become subject to any Remedial Action if such Remedial Action would or would reasonably be expected to result in a material adverse effect on Parent and its Subsidiaries (including the Company) taken as a whole, after giving effect to the Transactions, provided, however, that for this purpose, Parent and its Subsidiaries (including the Company) taken as a whole shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size of the Company as of the date of this Agreement, (y) become subject to, or consent or agree to or otherwise take any action with respect to any Remedial Action, unless such Remedial Action is binding on or otherwise applicable to Parent or its Subsidiaries only from and after the Effective Time, or (z) propose, commit to, effect, or execute, by consent decree, settlement, undertaking, stipulations, hold separate order, binding agreement with a third part(ies) or otherwise, the sale, divestiture, hold separate or disposition of any or all of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (including its Subsidiaries) or of the Company (collectively, “Divestiture Action”); and (iii) if requested by Parent in writing, the Company shall agree to any Remedial Action or Divestiture Action so long as such action is conditioned on the occurrence of the Closing.
(d) The Company, Parent and Merger Sub shall cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filingother actions pursuant to this Section 6.8(d), submission or substantive written communication with a and, subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the completion of the Transactions, including any proceeding initiated by a private person, allow promptly furnishing the other with copies of notices or other communications provided to or received by or on behalf of the Company or Parent, as the case may be, or any of Parent’s Subsidiaries, from any third party and/or any Governmental Entity with respect to the Transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other Party a reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party Party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company, or substantive written communicationproposals from third parties with respect thereto, (ii) keep as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The Parties, as they deem advisable and necessary, may designate any competitively sensitive material provided to the other parties hereto informed under this Section 6.8(d) as “Outside Counsel Only Material,” and such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in all material respects advance from the source of the materials or its legal counsel. Each of the Company, ▇▇▇▇▇▇ and on a reasonably timely basis of ▇▇▇▇▇▇ Sub agrees not to participate in any material communication received meeting or discussion, either in Person, by such party fromvideoconference, or given by such party totelephone, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or with any other Governmental Authority and of any material communication received or given Entity in connection with the Transactions unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate.
(e) In furtherance and not in limitation of the covenants of the Parties contained in this Section 6.8 and subject to Section 6.8(f), if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or by a private Personparty, is instituted (or threatened to be instituted) challenging, hindering, impeding, interfering with or delaying any Transactions, in each case regarding case, as violative of any Law, each of the TransactionsCompany, (iii) subject to applicable Laws relating to the exchange of information, Parent and to the extent reasonably practicable, consult Merger Sub shall cooperate in all respects with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant contest and resist any such Action or Legal Proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other Transactions.
(f) Subject to Section 203 6.8(d), Parent shall, upon reasonable consultation with the Company and in consideration of the FPA Company’s views in order good faith, be entitled to consummate direct the Transactions. The Purchaser defense of this Agreement and its Affiliates shall reasonably cooperate the Transactions before any Governmental Entity and consult with to take the Seller and its Affiliates lead in such efforts, including the execution scheduling of, and strategic planning for, any meetings with, and the conducting of discussions and negotiations with, Governmental Entities regarding any consent, approval, waiver, clearance, authorization or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries permission from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesa Governmental Entity.
(g) In connection with Without limiting any other obligation under this Agreement, during the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of period from the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) Agreement until the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result Closing Date or earlier termination of this Agreement in accordance with Article 8, each of Parent and the Company shall not, and Parent shall cause its Subsidiaries to not, acquire or agree to acquire any other Person or business or any material assets or properties of any other Person if such acquisition would reasonably be expected to materially impede, prevent or materially delay the Parties from obtaining the expiration or termination of the waiting period under the HSR Act or obtaining the Specified Regulatory Approvals, or to prevent or materially delay or materially impede the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Encore Wire Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall each party will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Laws to cause consummate the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as soon as practicable after the date of this Agreement, including, without limitation, (i) preparing and filing, in consultation with the other party and as promptly as practicable and to consummate and make effectiveadvisable after the date of this Agreement, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filingsapplications, notices, petitions, statementsfilings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, submissions of informationapprovals, applications permits, and other documents (including with respect authorizations necessary or advisable to be obtained from any Permitsthird party and/or any Governmental Entity, including Environmental Permits)but not limited to, the Merger Filing Documents and the filings set forth on Schedule 3.4 of the Company Disclosure Schedule in order to consummate the Merger or any of the other transactions contemplated by this Agreement and (ii) obtaining taking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments steps as may be necessary to consummate the Transactionsobtain all such waiting period expirations or terminations, in the case of each of clauses (i) through (iii)consents, other than with respect to filingsclearances, noticeswaivers, petitions, statementslicenses, registrations, submissions of informationpermits, applications authorizations, orders and other Consents relating to Antitrust Laws, which are dealt with approvals. In furtherance and not in Section 7.01(b), (c) and (d).
(b) Each limitation of the parties foregoing, each party hereto agrees to (iw) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated hereby as promptly as reasonably practicable following practicable, and in any event within twenty (20) Business Days after the date execution of this Agreement, (and x) make any filings in connection with any event with respect to Regulatory Approvals as promptly as practicable, including making the filings made pursuant to set forth in item 2 of Schedule 8.1(d) of the HSR Act Company Disclosure Schedule within ten (10) calendar days, provided, that 15 Business Days after the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date execution of this Agreement)Agreement or such other time in which the Company and Parent shall otherwise agree, and (iiy) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or by any Governmental Entity under any Regulatory Law, and such (z) take all other Antitrust Laws and to promptly take any and all steps actions necessary to avoid cause the expiration or eliminate each and every impediment and termination of the applicable waiting periods under the HSR Act or obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so Regulatory Approvals as to enable the parties hereto to consummate the Transactions soon as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholepracticable. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreementdoubt, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) Parent shall be required responsible for the payment of all filing fees payable to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial ActionsGovernmental Entity.
(db) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Each of Parent and the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority Company shall, in connection with the Transactions; provided that the Purchaser shall consult efforts referenced in good faith with the Seller regarding such strategySection 7.5(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law (iias defined below), (i) coordinate the overall development of the positions to be taken cooperate in all respects and the regulatory actions to be requested consult with each other in connection with any communication, filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filingRegulatory Laws, submissionincluding by allowing the other party and/or its counsel to have a reasonable opportunity to review in advance and comment on drafts of any communications, or substantive written communication, filings and submissions (and documents submitted therewith); (ii) keep promptly inform the other parties hereto informed in all material respects and on a reasonably timely basis party of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority Entity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, transactions contemplated by this Agreement; and (iii) subject permit the other party to applicable Laws relating to the exchange of informationreview any communication it gives to, and to the extent reasonably practicable, consult with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiariesin advance of any meeting, as the case may be, that appears in any filing made withtelephone call, or written materials submitted to, any third Person or any Governmental Authority in connection videoconference with the TransactionsDOJ, the FTC, or such other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR ActGovernmental Entity or other person, and (iv) to the extent permitted by the DOJ, the FTC, the DOJ, FERC or such any other applicable Governmental Authority Entity or other Person, give the other parties hereto prompt notice of, and party and/or its counsel the reasonable opportunity to attend and participate inin such meetings, substantive meetings telephone calls and conferences, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.5(b) as “Antitrust Counsel Only Material.
(f) In furtherance ” Such materials and the information contained therein shall be given only to the outside counsel of the obligations set forth in Section 7.01(a) recipient and otherwise subject will not be disclosed by such outside counsel to the terms of this Section 7.01employees, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 officers or directors of the FPA recipient unless express permission is obtained in order to consummate advance from the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation source of the Transactions will require, and materials (Parent or the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq.Company, as amended (“ISRA”), (iithe case may be) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date or its legal counsel. For purposes of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)“Regulatory Law” means Antitrust Laws, (A) the “General Information Notice” shall identify Defense Production Act of 1950, as amended, and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and submissions judicial doctrines and take all other laws that are designed or intended to prohibit, restrict or regulate actions necessary on the basis of national security or national interest and Applicable Laws relating to comply with ISRA change of control or other approvals required from any Governmental Entity (as a result including Governmental Entities responsible for the regulation of this Agreement asset managers and the consummation providers of financial products and services) for completion of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in transactions contemplated by this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
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Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, the Purchaser Parties shall, and the Seller shall cause their respective Affiliates to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under any applicable Law to consummate and make effective, in effective as promptly as reasonably practicable the most expeditious manner practicable, transactions contemplated by this Agreement and the Transactionsother Transaction Documents, including (i) preparing the preparation and filing promptly and fully of all documentation to effect all necessary filings, notices, petitions, statementsforms, registrations, submissions of information, applications Filings and other documents notices required to be filed to satisfy the conditions precedent to this Agreement (including with respect those set forth in Section 11.1) and to any Permits, including Environmental Permits)consummate the transactions contemplated by this Agreement as soon as practicable, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions execution and (iii) executing and delivering delivery of any additional instruments necessary to consummate the Transactions, in transactions contemplated by this Agreement and to fully carry out the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date purposes of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (iiiii) supply as promptly as reasonably practicable any additional information obtaining necessary waivers, consents and documentary material that may be requested pursuant to approvals from applicable third parties required under Section 3.4 of the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Georgia Disclosure Schedules. Without limiting the foregoing, the Purchaser (x) Georgia and the Seller Florida shall, and shall cause their respective Affiliates to, with respect to useRegulatory Approvals required for the closing of the Purchased Entity Sale (the “Purchased Entity Sale Regulatory Approvals”), and (y) Georgia, Washington and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Chicago in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Chicago (or the applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and the Purchased Entity (and its Subsidiaries), on the one hand, and Florida, on the other hand, shall cooperate in good faith with the other Party (or its legal counsel) to satisfy all applicable Governmental Authorities required obligations in relation to Purchased Entity Sale Regulatory Approvals. Each of Georgia, on the one hand, and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser Florida and Washington (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred EntitiesSubsidiaries), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businessesother hand, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult cooperate in good faith with the Seller regarding such strategyother Party and Chicago (or their respective legal counsels) to satisfy all required obligations in relation to Washington Sale Regulatory Approvals. Chicago is hereby expressly made a third-party beneficiary of Section 8.1(a).
(b) The Parties shall not, and (ii) coordinate shall cause their respective Affiliates not to, take any action after the overall development date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary to be obtained prior to the Closing. Without limiting the foregoing, Georgia, Washington and Florida shall not, and shall cause their respective Affiliates not to, acquire or enter into a definitive agreement to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be obtained to satisfy the conditions set forth in Section 11.1(a). The Parties shall not, without the prior written consent of all of the positions to be taken and the regulatory actions to be requested in any filing Parties, extend or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to offer or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Regulatory Law or other Law under which a Regulatory Approval is required, or enter into a timing any agreement with any Governmental AuthorityEntity related to this Agreement, without the prior written consent of the other partyTransaction Documents or the transactions contemplated by this Agreement.
(ec) Each Prior to the Closing, the Parties shall each keep the other reasonably apprised of the parties hereto status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, (x) subject to the Confidentiality Agreement and Section 6.2, with respect to the Purchased Entity Sale Regulatory Approvals, Georgia and the Purchased Entity, on the one hand, and Florida, on the other hand, and (y) subject to the Confidentiality Agreement and Section 7.2, with respect to the Washington Sale Regulatory Approvals, Georgia, on the one hand, and Florida and Washington, on the other hand, shall use its reasonable best efforts to (i) cooperate promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all respects Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or material correspondence with, a Governmental Entity, in each other case, in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow such Regulatory Approval; (ii) promptly inform the other party Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any material communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding such Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review such filing, submission, or substantive written communication and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication with any such other party Governmental Entity in connection with such Regulatory Approval; (iv) if such Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such filingRegulatory Approval, submissionthen such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by the applicable Governmental Entity, or substantive written communication, (ii) keep the other parties hereto informed not participate in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or meeting with any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding by a private Personsuch Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other conversations) unless it consults with the other Party in each case regarding any of the Transactionsadvance and, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicablenot prohibited by such Governmental Entity or any applicable Law, consult with gives the other parties hereto with respect to information relating to Party the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate inthereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, substantive in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that a Party may, as it deems advisable and necessary, reasonably designate portions of correspondence or Filings that contain sensitive personal data or commercially sensitive information relating to such Party or its controllers or control persons as “outside counsel only,” which such portions shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel, and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Business, Washington Business, Business Sale Process or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Chicago with respect to the Regulatory Approvals (as defined in the Chicago Transaction Agreement) required to be obtained under the Chicago Transaction Agreement, and shall require the Parties and Chicago to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Chicago Transaction Agreement in the manner set forth in this Section 8.1(c) (other than the right to participate in meetings and conferencesunder the foregoing clause (v)). Chicago is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Washington or its Affiliates or Representatives (other than Florida) and/or secure the participation of Washington or its Affiliates or Representatives (other than Florida) in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(fd) Without limiting the foregoing, (i) the Parties shall, and shall cause their respective Affiliates to, file, as promptly as practicable notifications under the HSR Act; (ii) Georgia and Florida shall, and shall cause their respective Affiliates to, file as promptly as practicable following the date of this Agreement, any other Filing required to obtain any other Purchased Entity Sale Regulatory Approvals; and (iii) Georgia, Florida and Washington shall, and shall cause their respective Affiliates to, file as promptly as practicable, following the date of this Agreement, any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the obligations foregoing, and notwithstanding anything in this Agreement to the contrary, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Purchased Entity Sale and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Purchased Entity Sale, so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 7.01(a11.1(a)(i) and otherwise Section 11.1(a)(ii), subject to the terms of the remainder of this Section 7.018.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Purchased Entity Sale, Florida shall direct the Seller timing of proffering and agreeing to the Purchaser remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 8.1(e), and further subject to consulting in good faith with Georgia prior to making any such timing decisions. With respect to the Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Purchased Entity Sale, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use their respective reasonable best efforts (including proffering and agreeing to obtain approval from FERC pursuant the remedies set forth in this Section 8.1(e)) to Section 203 resolve such objections of the FPA applicable Governmental Entities at both (i) their initial stage of review in order to consummate mitigate the Transactions. The Purchaser risk of referral of the Purchased Entity Sale by such applicable Governmental Entities to an in-depth investigation or review, and its Affiliates shall reasonably cooperate and consult with (ii) in the Seller and its Affiliates in event of such effortsreferral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the execution ofapproval of the Purchased Entity Sale by such applicable Governmental Entities prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Florida shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein (each, a “Divestiture Remedy”) of the Business and/or of Florida or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or consenting toother impairment of Florida’s and/or the Purchased Entity’s or its Subsidiaries’ ability to own, FPA Section 203-related applications retain, manage or submissions operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Florida’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with FERCrespect to ownership interests in the Business and/or of Florida or its Subsidiaries; provided, including however, that, notwithstanding any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date other provisions of this Agreement. The Purchaser , neither Florida nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Florida and its Affiliates shall make all necessary post-Subsidiaries (including for this purpose, the Purchased Entity and its Subsidiaries) from and after the Closing filings (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Florida and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with its Subsidiaries from and after the Company Sites located in Pedricktown, New Jersey, (i) Closing were collectively the parties acknowledge that same size as the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., Business as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, (iii) subject none of Georgia, Florida or their respective Affiliates shall be obligated to Seller’s indemnification obligations take or agree or commit to take any action in connection with respect obtaining the Purchased Entity Sale Regulatory Approvals that is not conditioned on the Closing. Additionally, in connection with obtaining the Purchased Entity Sale Regulatory Approvals, Georgia and its Affiliates shall not be obligated to, and none of the Parties shall take or agree or commit to take any action that relates to any Non-Legacy Environmental Liabilities under Section 10.02(b)Excluded Assets or Retained Businesses. In addition, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its AffiliatesFlorida and, to the extent permitted under ISRAapplicable, will provide a self guarantee Washington, shall defend through litigation on the merits any claim asserted in lieu of such required source court or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control before any Remedial Action with respect to other Governmental Entity by any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that would prevent the performance Closing of their respective obligations under this Section 7.01.the Purchased Entity Sale by the Outside Date, including by pursuing all a
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Sellers and the Purchaser and the Seller Group shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner Sale and the other transactions contemplated by this Agreement as soon as reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsdecisions, submissions declarations, approvals and, expirations or terminations of informationwaiting periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, applications and other documents (including with respect clearance or waiver from, or to avoid an action or proceeding by, any PermitsGovernmental Entity, including Environmental Permitsin connection with any Antitrust Law (all of the foregoing, collectively, the "Governmental Consents"), ; (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) authorizations, approvals or waivers from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions parties; and (iii) executing the execution and delivering delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated this Agreement. To the extent any out‑of‑pocket fees or expenses are required to be paid to third parties in connection with the transfer at Closing, or the use by the Purchaser Group or its Affiliates following the Closing, of contractual rights or licenses related to software used in the case Business, the Sellers and the Purchaser Group shall each pay fifty percent (50%) of each all such fees or expenses; provided, however, the Sellers shall, jointly and severally, pay one hundred percent (100%) of clauses any such fees and expenses (iA) through payable pursuant to the SAP Contract or any Contracts with Oracle Corporation or its Affiliates or (iii)B) which constitute Losses for which the Purchaser Indemnified Parties would otherwise be indemnified pursuant Section 9.2, other than with respect subject to filings, notices, petitions, statements, registrations, submissions the terms of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)Article IX.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant Subject to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) terms and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (conditions herein provided and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without without limiting the foregoing, the Purchaser Group and the Seller shallSellers shall (i) make or cause to be made, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly soon as reasonably practicable commercially reasonable actions practicable, all appropriate notification filings, forms and submissions required to complete lawfully under any Antitrust Laws with the Transactions Governmental Entities identified in Section 4.3(b) of the Seller Disclosure Schedule on or prior to the Termination Date, provided, that notwithstanding anything to date which is five (5) Business Days following the contrary in this Agreement, the Purchaser (date hereof; and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any cooperate with each other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any other Governmental Entities or third parties in connection with the Business from execution and after delivery of this Agreement and the Closing consummation of the transactions contemplated hereby and (B) individually to the extent not made prior to the date of this Agreement or in the aggregateotherwise, would not reasonably be expected making, or causing to be made, as soon as reasonably practicable, all such applications and filings and seeking all such actions or nonactions, licenses, permits, orders, clearances, waivers, authorizations, expirations or terminations of waiting periods, notifications, clearances, consents and approvals. Each Party shall supply as promptly as practicable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under or with respect to any Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by the Business, taken as a whole. For Sellers or the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 Purchaser Group or any other provision of their respective Affiliates from any Governmental Entity in connection with such applications or filings or the transactions contemplated by this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) . The Purchaser Group shall be responsible for paying one hundred percent (100%) of all filing fees of all Parties associated with all appropriate notification filings, forms and submissions required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and under the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial ActionsHSR Act.
(dc) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategyFurther, and (ii) coordinate without limiting the overall development generality of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforerest of this Section 4.3, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate cooperate, as promptly as practicable, in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry and shall, subject to applicable Law, promptly (i) furnish to the other such necessary information and reasonable assistance as the other Parties may request in connection with the foregoing; (ii) inform the other Parties of any material communication from, with or to any Governmental Entity regarding any of the transactions contemplated by or before this Agreement; and (iii) provide counsel for the other Parties with copies of all filings made by such Party, and all correspondence between such Party (and its advisors) with any Governmental Entity and any other information supplied by such Party and such Party's Subsidiaries to a Governmental Authority relating Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement. Each Party shall, subject to the Transactionsapplicable Law and attorney‑client privilege, including any proceeding initiated by a private person, allow permit counsel for the other party Parties to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect to such filingParties in connection with, submission, or substantive any proposed written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party fromdraft filing, correspondence or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject submission to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactionstransactions contemplated by this Agreement. The Parties shall not participate, or to permit their Subsidiaries to participate, in any meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used Parties in the rules and regulations under the HSR Actadvance and, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and Parties the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner as promptly as practicable, the TransactionsOffer and Merger and the other transactions contemplated hereby, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Company Approvals and the Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, approvals or waivers from third parties, including Environmental Permits) from any Governmental Authority or third party necessarya waiver by the lenders of the change of control and merger restrictions contained in the Fourth Amended and Restated Credit Agreement among the Company, proper or advisable to consummate Citibank, N.A., BNP Paribas and the Transactions and lenders thereunder, dated as of May 16, 2008, as amended, (iii) executing the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer or the Merger and delivering the other transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactionstransactions contemplated hereby. In furtherance of the foregoing, the Company may, but in no event shall the case Company or any of each its Subsidiaries be required to, pay prior to the Board Appointment Date any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of clauses (i) through (iii)the Offer or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, other than with respect to filingswaivers, noticesconsents, petitionsclearances, statementsapprovals, registrationsand expirations or terminations of waiting periods, submissions of informationincluding the Company Approvals and the Parent Approvals, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)from Governmental Authorities.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, if required under the HSR Act, the Company and Parent shall (i) make an appropriate filing promptly, but in no event later than 5:30 p.m. Eastern Daylight Savings time on the fifth Business Day after the date of a this Agreement, file any and all Notification and Report Form pursuant to Forms required under the HSR Act with respect to the Transactions (which shall request Offer, the early Merger and the other transactions contemplated hereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting period applicable to the Transactions periods under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, Authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any required notification under third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, Authorizations or approvals, (iii) supply to any other Antitrust Laws Governmental Authority as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and or documentary material that may be requested pursuant to the HSR Act and any Regulatory Law or by such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as and (iv) use reasonable best efforts to enable the parties hereto take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions as promptly as reasonably practicable Offer, the Merger and in any event prior to the Termination Dateother transactions contemplated hereby.
(c) Without limiting Each of Parent and the foregoingCompany shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Purchaser and the Seller shall, and shall cause Company or any of their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent Subsidiaries to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any third party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from and/or any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken Merger and the regulatory actions transactions contemplated by this Agreement. Subject to be requested in any filing or submission with a Governmental Authority in connection with applicable legal limitations and the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and instructions of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent Company and Parent shall keep each other apprised of the other party.
(e) Each status of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority matters relating to the Transactionscompletion of the Offer, the Merger and the other transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Authority with respect to such Merger or transactions. The Company and Parent shall provide counsel for the other party a reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect in connection with, any proposed written communication to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division Governmental Authority. Each of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority Company and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject Parent agrees not to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears participate in any filing made withsubstantive meeting or discussion, either in person or written materials submitted toby telephone, any third Person or with any Governmental Authority in connection with the Transactionsproposed transactions unless it consults with the other party in advance and, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Authority, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and party the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(fd) In furtherance and not in limitation of the obligations set forth covenants of the parties contained in Section 7.01(a) and otherwise subject to the terms of this Section 7.016.10, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Offer, the Seller Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and the Purchaser Parent shall cooperate in all respects with each other and shall use their its respective reasonable best efforts to obtain approval from FERC pursuant contest and resist any such action or proceeding and to Section 203 have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the FPA in order to consummate Offer, the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, Merger or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten other transaction contemplated hereby.
(10e) calendar days after the date For purposes of this Agreement. The Purchaser , “Regulatory Law” means any and its Affiliates shall make all necessary post-Closing filings state, federal and submissions pursuant to FERC’s foreign statutes, rules, including all applicable deadlines.
(g) In Regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Authority, or that otherwise may cause any restriction, in connection with the Company Sites located in PedricktownOffer, New Jerseythe Merger and the transactions contemplated thereby, including (i) the parties acknowledge that ▇▇▇▇▇▇▇ Act of 1890, the execution ▇▇▇▇▇▇▇ Antitrust Act of this Agreement and 1914, the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery HSR Act, N.J.S.A. 13:1K-6 et seq.the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, and restrict or regulate actions having the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days direct or indirect ownership or control of any of the date operations or assets of this Agreement, the Company and its Subsidiaries or (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance Law with the terms purpose of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserprotecting the national security or the national economy of any nation.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and reasonably necessary under Applicable Law to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions, noticeswaivers, petitionsconsents and approvals from Governmental Authorities, statementsthe expiry or early termination of any applicable waiting periods, registrations, submissions and the making of information, applications all necessary registrations and other documents filings (including filings with respect Governmental Authorities, if any) and the taking of such commercially reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Permits, including Environmental Permits)Governmental Authorities, (ii) the delivery of required notices to, and the obtaining all Consents of required consents or waivers from, Third Parties and (including with respect iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.11, each of Parent and the Company shall (i) prepare and file any Permitsnotification and report forms and related material required under the HSR Act, including Environmental Permits) from and any Governmental Authority additional filings or third party notifications and related material that are necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate permit consummation of the Transactions, as promptly as practicable (but in no event later than ten (10) Business Days from the case date of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of this Agreement for the parties hereto agrees to (i) make an appropriate filing of a Notification any notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions report forms and related material required under the HSR Act) and any required notification under any other Antitrust Laws except by mutual consent confirmed in writing), (ii) provide or cause to be provided as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to by the DOJ or FTC under the HSR Act and (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain expiration or termination of any applicable waiting period or other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate approval of consummation of the Transactions by the DOJ or FTC as promptly as reasonably practicable and in practicable, including to cause to be lifted any event prior restraint, injunction or other legal impediment to the Termination DateMerger.
(c) Without limiting Subject to Applicable Law relating to the foregoingexchange of information, the Purchaser Company and the Seller shall, Parent and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser counsel shall (i) control have the strategy for obtaining right to review in advance, and to the extent practicable each shall consult the other on, any Consents from material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, the overall development DOJ or the FTC and (iii) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or affiliates, on the positions one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to be taken the Transactions. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the regulatory actions opportunity to be requested participate in any filing material discussion or submission meeting with a any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental theretoTransactions. Neither the Purchaser Parent nor the Seller Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with other. The Company and Parent may, as each other in connection with deems advisable and necessary, reasonably designate any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all competitively sensitive material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating provided to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made 6.11 as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines“Antitrust Counsel Only Material.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this AgreementSection 6.11, materials provided to the Seller other party or its counsel may be redacted to remove references concerning the valuation of the Company and its Affiliates the Company Subsidiaries.
(d) Parent shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to have, except where prohibited by Applicable Law, responsibility for determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to antitrust matters. Nothing in this Agreement shall obligate Parent or other third party Merger Sub or any Subsidiary of Parent to, and the Company shall not and shall cause each Company Subsidiary to not, agree to limit in connection with any manner whatsoever (i) any rights of ownership of any securities (including the performance Shares), or to divest, dispose of or hold separate any securities or all or a portion of their respective obligations under this Section 7.01businesses, assets or properties or of the business, assets or properties of their repective Subsidiaries, or (ii) the ability of such entities (A) to conduct their respective businesses or own such assets or properties or to conduct the businesses or own the properties or assets of their respective Subsidiaries or (B) to control their respective businesses or operations or the businesses or operations of their respective Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Open Text Corp)
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under any applicable Law to consummate and make effective, in effective as promptly as reasonably practicable the most expeditious manner practicable, Transaction and the Transactionsother transactions contemplated by this Agreement, including (i) preparing the preparation and filing promptly and fully of all documentation to effect all necessary filings, notices, petitions, statementsforms, registrations, submissions of information, applications Filings and other documents notices required to be filed to satisfy the conditions precedent to this Agreement (including with respect those set forth in Section 8.1) and to any Permits, including Environmental Permits), consummate the Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions execution and (iii) executing and delivering delivery of any additional instruments necessary to consummate the TransactionsTransaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include promptly furnishing the other party (or the applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Entity (or Subsidiaries thereof) or any of their Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement, including that Seller or the Purchased Entity shall as soon as practicable and, in any event, no later than required by applicable Law, prepare and file with the relevant Governmental Entity any notices required in connection with the Transaction. With respect to any applicable Regulatory Approvals under Financial Services Requirements and Gaming Laws not set forth on Section 3.5 of the Seller Disclosure Schedules, each Party agrees to use its reasonable best efforts and cooperate with the other Parties (A) in determining if any such Regulatory Approvals are not required in connection with the Transactions contemplated by this Agreement, and (B) if determined by the Parties that any such Regulatory Approvals are required, in timely making any filings required to be made by it to obtain such required Regulatory Approvals. Seller and the Purchased Entity (and its Subsidiaries) shall cooperate in good faith with Purchaser (or its legal counsel) to satisfy all required obligations in relation to any required Filings to be made by Purchaser in respect of the Transaction. Additionally, Purchaser and Seller shall not, and shall cause their respective Subsidiaries not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Subsidiaries not to, acquire or enter into a definitive agreement to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be obtained to satisfy the conditions set forth in Section 8.1(a). Purchaser and Seller shall not, without the prior written consent of the other party, extend or offer or agree to extend any waiting period under the HSR Act or any other Regulatory Law or other Law under which a Regulatory Approval is required, or enter into any agreement with any Governmental Entity related to this Agreement, the other Transaction Documents, the Amended and Restated LLC Agreement or the transactions contemplated by this Agreement.
(b) Prior to the Closing, Purchaser and Seller shall each keep the other reasonably apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or material or substantive correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any material or substantive communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the Transaction and the other transactions contemplated by this Agreement, and permit the other Party to review and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication with any such Governmental Entity. If either Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such Party will make, or cause to be made, promptly and after consultation with the other Party, an appropriate response to such request. None of Purchaser, Seller or their respective Affiliates or Representatives shall, unless otherwise required by the applicable Governmental Entity, participate in any meeting with any Governmental Entity in connection with this Agreement and the Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity or any applicable Law, gives the other Party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.3, each Party shall furnish the other Party with copies of all correspondence and Filings (or, in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement, and promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 5.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns.
(c) Without limiting the foregoing, (i) Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any event no later than ten (10) Business Days after the date of this Agreement, notifications under the HSR Act, and (ii) Purchaser and Seller shall, and shall cause their respective Affiliates to, file as promptly as practicable following the date of this Agreement, any other Filing required to obtain any other Regulatory Approvals, which, with respect to Filings (or draft Filings, if applicable) with respect to competition or foreign direct investment filings, shall be filed no more than forty-five (45) days after the date of this Agreement.
(d) In furtherance of the foregoing, and notwithstanding anything in this Agreement to the contrary, Purchaser shall, and shall cause its Subsidiaries to, take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the transactions contemplated hereby and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date). In furtherance of the foregoing, Purchaser shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein of the Business or of Purchaser or its Subsidiaries (and consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by the Seller Entities of any assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions) and agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Purchaser’s or the Purchased Entity’s or its Subsidiaries’ ability to own, retain or operate, any such assets, licenses, product or service lines, businesses or interests therein or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Purchaser or its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, none of Purchaser, Seller or their respective Affiliates shall be obligated to take or agree or commit to take any action (i) that is not conditioned on the Closing or (ii) that relates to any Excluded Assets or Retained Businesses; and in no event shall Seller or any of its Affiliates (other than the Purchased Entity and its Subsidiaries) be required to be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements, if taking such action would reasonably be expected to have more than an immaterial impact on any business or product line of Seller or any of its Affiliates (other than the Purchased Entity and its Subsidiaries), and, in any case, Seller and its Affiliates (other than the Purchased Entity and its Subsidiaries) shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including any indemnification obligations, for which Seller and its Affiliates (other than the Purchased Entity and its Subsidiaries) are not fully indemnified by Purchaser.
(e) In furtherance of the foregoing, prior to the Closing and upon Purchaser’s prior written request, Seller shall (or shall cause its Affiliates to), use its reasonable best efforts to do the following: (i) surrender of the Jersey Money Service Business License held by Seller or one of its Subsidiaries; (ii) amend the existing Singapore License under the Payment Services Act held by Seller or one of its Subsidiaries; and (iii) amend or terminate any pending, and not file any new, Financial Services License applications, except, in the case of each of clauses (i) through (iii), other than with respect to filingsif any such surrender, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early amendment or termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and would result in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on additional required Regulatory Approval or a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation delay of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of transactions contemplated by this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of Whether or not the obligations set forth in Section 7.01(a) and otherwise Transaction is consummated but subject to the terms of this Section 7.0111.12, the Seller and the Purchaser shall use their respective reasonable best efforts be responsible for all filing and similar fees and payments payable to obtain approval from FERC pursuant to Section 203 of the FPA any Governmental Entity in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including obtain any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions Approvals pursuant to FERCthis Agreement excluding, for avoidance of doubt, the fees of and payments to Seller’s rules, including all applicable deadlineslegal and professional advisors and fees.
(g) In connection with the Company Sites located Notwithstanding anything in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and to the consummation of the Transactions will requirecontrary, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., except as amended (“ISRA”contemplated by Section 5.1(f), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days none of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company other Seller Entities or its Affiliates, to the extent permitted any of their respective Affiliates shall under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability circumstance be required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation pay or commit to pay money any amount or incur any obligation in favor of or offer or make any concession or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Governmental Authority or other third party Person to obtain any Approval that may be required in connection with the performance Transaction or the other transactions contemplated by this Agreement. None of Seller, the other Seller Entities, Purchaser or any of their respective Affiliates shall have any Liability whatsoever to Purchaser or any of its Affiliates arising out of or relating to the failure (in and of itself, without any breach by Seller of any of its obligations under hereunder) to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Section 7.01Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Fidelity National Information Services, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties and the Seller use (and shall use cause their respective Affiliates to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents approvals, nondisapprovals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Banking Authority (including with respect to the OCC) and any Permits, including Environmental Permits) from any other Governmental Authority or third party necessarynecessary to consummate the Transactions, proper or advisable (iii) execute and deliver any additional instruments necessary to consummate the Transactions and (iiiiv) executing and delivering defend or contest in good faith any additional instruments necessary to consummate Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Laws or FDI Laws, which are exclusively dealt with in Section 7.01(b), (c5.03(c) and (d)) below. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement (including any provision of this Section 5.03) shall require Parent or any of its Affiliates to agree to any Materially Burdensome Regulatory Condition and the Company shall not agree to or take any action constituting a Materially Burdensome Regulatory Condition without Parent’s prior written consent.
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all actions necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all actions necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees agrees: (1) that each of the applicable parties shall make, or cause to be made, (iA) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) as promptly as reasonably practicable following the date of this Agreement, and in any required event within twenty Business Days following the date of this Agreement, (B) an appropriate filing of a notification and request for an advance ruling certificate pursuant to the Competition Act with respect to the Transactions as promptly as reasonably practicable following the date of this Agreement, and in any event within twenty Business Days following the date of this Agreement, (C) an appropriate filing with the OCC or other applicable Governmental Authority with respect to the approvals or notices listed on Section 8.12(b) of the Company Disclosure Letter in order to obtain the Requisite Change of Control Approvals as promptly as reasonably practicable following the date of this Agreement, and in any event within twenty-five Business Days following the date of this Agreement, and (D) any appropriate filings under any other applicable Antitrust and FDI Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (102) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply an appropriate response as promptly as reasonably practicable to any additional reasonable request for information and or documentary material that may be requested pursuant to under the HSR Act Act, the Competition Act, the Other Required Antitrust and such FDI Laws and any other applicable Antitrust Laws and FDI Laws and (3) to promptly take any and all steps necessary use reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents consents under any Antitrust Laws and FDI Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) practicable. Without limiting the foregoing, the Purchaser Company and the Seller Parent shall, and shall cause each of their respective Affiliates to useSubsidiaries, and, in the case of Parent, any Equity Investor’s Affiliate, to, use their reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully secure the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer expiration or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships applicable waiting period under the HSR Act and the Competition Act and to use their reasonable best efforts to secure the expiration or contractual rights termination of the Transferred Entities)any applicable waiting period and obtain any consent, (ii) proffer clearance or consent to approval required under any other restriction, prohibition or limitation on the ownership or operation of applicable Antitrust Laws and FDI Laws and resolve any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have objections asserted with respect to the Transactions (under any applicable Antitrust Law or FDI Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholeTransactions. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon on the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser Parent nor the Seller Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act, the Competition Act or any other Antitrust Laws or FDI Laws or enter into a timing agreement with any Governmental Authority, or withdraw its initial filing pursuant to the HSR Act, the Competition Act or any other Antitrust Law, as the case may be, and refile any of them, without the prior written consent of the other party, such consent not to be unreasonably refused, conditioned or delayed. In furtherance and not in limitation of this Section 5.03(c) and Section 5.03(d), the parties hereto shall use reasonable best efforts to defend through litigation any claim asserted in court by any Person, including any Governmental Authority, under any Antitrust Laws or FDI Laws in order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that could restrain, delay or prevent the Closing, including by pursuing all reasonable avenues of administrative and judicial appeal.
(ed) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties party hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission Canadian Competition Bureau (the “FTCCCB”), FERC the OCC or any other Governmental Authority or third Person (including any Banking Authority) and of any material substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties party hereto with respect to information relating to the other parties hereto and their respective SubsidiariesAffiliates, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Transaction Related Documents” and “Plans and Reports” as those terms are that term is used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC the CCB or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate inin any meetings, substantive meetings telephonic conferences and conferencesvideoconferences with such Governmental Authority or other Person regarding any of the Transactions. Parent and the Company shall have the right to review in advance all written materials submitted to any Governmental Authority in connection with the Transactions, in each case to the extent such materials or communications are related to any Antitrust Laws or FDI Laws or the change of control of any Permit; provided that any such materials may be redacted (A) to remove references concerning the valuation of, other bidders for, or the assessment of other strategic alternatives available to, the Company, (B) as necessary to comply with contractual arrangements or applicable Law and (C) as necessary to address reasonable privilege or confidentiality concerns; provided further that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”, in which case such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the advance written consent of the party providing such materials. In furtherance of the foregoing, Parent shall use its reasonable best efforts, and shall use its reasonable best efforts to cause its Affiliates (including Equity Investor’s Affiliates) to provide as promptly as practicable (including using reasonable best efforts to provide within five (5) Business Days) such information as is requested by the applicable Government Authority in connection with the Requisite Change of Control Approvals, including providing the information or taking the actions specified in Section 5.03(d) of the Company Disclosure Letter; provided that, to the extent a Government Authority requests any additional personal or financial information of any indirect owners or control persons of Parent who are individuals, Parent may seek to obtain a waiver or offer to provide alternative customarily accepted information so long as such attempt would not be reasonably expected to delay in any material respect, impair or prevent the applicable party or parties from obtaining the Requisite Change of Control Approvals. Notwithstanding anything to the contrary in this Agreement, with respect to any filing or supplement thereto required by a Governmental Authority that may include sensitive financial or other information (including but not limited to sensitive personal information) with respect to Parent or Parent Related Parties, such Person may elect, in such Person’s sole discretion, to provide such information to such Governmental Authority directly through its legal counsel.
(e) Notwithstanding anything in this Agreement to the contrary, the foregoing Section 5.03(a) through Section 5.03(d), and not any other provisions, will solely govern the parties’ required efforts in order to make any required notices or filings, and obtain any consents or approvals, under any Antitrust Laws or FDI Laws.
(f) In furtherance Parent shall take (and shall cause its Equity Investors’ Affiliates (the “Interested Parties”) to take) any and all actions, and do, or cause to be done, any and/or all things necessary, proper or advisable to ensure that any review of the obligations set forth Merger by CFIUS and any CFIUS Approval will not impede, prevent or delay the Closing and in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC connection therewith avoid any restraint pursuant to Section 203 6.01(a). In furtherance and not in limitation of the FPA foregoing, Parent shall take (and shall cause Interested Parties to take) the following actions (and the Company shall, solely to the extent provided below and subject to Section 5.03(i) below, use its commercially reasonable efforts to cooperate with Parent in order connection with the following actions) as necessary, proper or advisable to consummate obtain the Transactions. The Purchaser CFIUS Approval:
(i) with respect to the CFIUS Approval, (A) as promptly as reasonably practical, the Parent and Company shall file, or cause to be filed, with CFIUS a draft of the CFIUS Notice (the “Draft Notice”) as contemplated under 31 C.F.R. 800.401(f), and (B) as promptly as practicable after receiving and incorporating any feedback from CFIUS regarding the Draft Notice, Parent and Company shall file, or cause to be filed, the CFIUS Notice in accordance with the DPA;
(ii) supplying, as promptly as reasonably practicable, any certification, additional information, documents or other materials in respect of such notice or the transactions contemplated by this Agreement that may be requested by CFIUS, respectively, in connection with its Affiliates shall review process related to the CFIUS Approval; and
(iii) cooperating with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of CFIUS or any other Governmental Authority related to the review processes for the CFIUS Approval, including by (A) allowing each other to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions to CFIUS, (B) promptly informing each other of any communication received by Parent or the Company, or given by Parent or the Company to, CFIUS by promptly providing copies to the other party of any such written communication, except for any exhibits to such communications providing the personal identifying information required by 31 C.F.R. §800.402(c)(6)(vi), information otherwise requested by CFIUS to remain confidential or information reasonably cooperate determined by Parent or the Company to be business confidential information, (C) permitting each other to review in advance any written or oral communication that Parent or the Company gives to CFIUS, and consult with the Seller Company in advance of any meeting, telephone call or conference with CFIUS, and its Affiliates to the extent not prohibited by CFIUS, give each other the opportunity to attend and participate in such effortsany telephonic conferences, including the execution of, videoconferences or consenting to, FPA Section 203in-related applications person meetings with CFIUS and (D) cooperating in good faith to minimize any mitigation conditions or submissions with FERC, including any inquiries from staff, which applications or submissions shall restrictions that may be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesimposed by CFIUS.
(g) In Parent shall not commit to, or agree with CFIUS or any other Governmental Authority in connection with the Company Sites located in PedricktownCFIUS Approval to, New Jersey, (i) delay or impede the parties acknowledge that Transactions without the execution of this Agreement and the consummation prior written consent of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserCompany.
(h) Notwithstanding anything herein to the contrary, Parent shall bear the cost of any filing fee payable to a Governmental Authority in connection with any filings made in relation to CFIUS.
(i) Notwithstanding anything to the contrary in this Agreement, the Seller failure of the Company to comply with Section 5.03(f) shall not give rise to the failure of a condition precedent set forth in Section 6.02(b) or a right to terminate this Agreement pursuant to Section 7.01(c)(i) unless such failure is the result of a material and its Affiliates shall have no obligation intentional breach by the Company of any provision of Section 5.03(f).
(j) Notwithstanding anything in this Agreement to pay money or offer or make the contrary, the foregoing Section 5.03(f) through (i), and not any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party provisions, will solely govern the parties’ required efforts in connection with the performance CFIUS Approval.
(k) Until such time as the required CFIUS Approval has been obtained, each non-US person that has, as of their respective obligations under this Section 7.01.the Closing, any direct or indirect interest in Parent (x) shall solely hold passive economic interests in Parent and (y) shall not have any board representation rights or other governance or cons
Appears in 1 contract
Sources: Merger Agreement (Dayforce, Inc.)
Efforts. (a) Subject to the terms The Parties shall, and conditions of this Agreementshall cause their Affiliates to, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, take or cause to be taken, taken all actions, actions and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessarynecessary or advisable, proper or advisable so as to cause enable the conditions to the Closing to be satisfied as promptly as practicable and Parties to consummate and make effectiveeffective the Transaction as soon as possible, and in any event, prior to the most expeditious manner practicable, the TransactionsOutside Date, including (i) preparing obtaining the expiration or termination of all applicable waiting periods under the HSR Act and filing promptly obtaining all other necessary consents, clearances and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including approvals under Antitrust Laws with respect to any Permits, including Environmental Permits), the Transaction and (ii) obtaining all Consents (including with respect to avoiding or eliminating each and every impediment or objection under the HSR Act and any Permits, including Environmental Permits) from other Antitrust Law or Insurance Law that may be asserted by any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than Person with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Transaction.
(b) Each Without limiting the generality of the parties hereto agrees foregoing, the Parties shall, and shall cause their respective Affiliates to, use their reasonable best efforts to (i) make an appropriate filing obtain from Governmental Authorities all consents, clearances, approvals and authorizations required to be obtained by any Party or any of a Notification and Report Form pursuant to its respective Affiliates in connection with the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws Transaction as promptly soon as reasonably practicable following the date of this Agreementpossible, (and in any event with respect to filings made pursuant event, prior to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), Outside Date and (ii) supply avoid any Action by any Governmental Authority in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transaction. Each Party shall, and shall cause its respective Affiliates to, prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable any additional information (and documentary material that may be requested pursuant to no later than twenty (20) Business Days following the date hereof), all necessary filings in connection with the Transaction under the HSR Act and any other Antitrust Laws. The Parties shall, and shall cause their respective Affiliates to, use their reasonable best efforts to (x) cooperate with the other Parties and promptly furnish all information to the other Parties that is necessary in connection with such filings and (y) respond promptly to any inquiries or requests for information, documents or testimony from any Governmental Authority concerning such filings. Parent shall pay all filing fees for filings by the Parties and their respective Affiliates required under the HSR Act or other Antitrust Laws in connection with the Transaction. Parent shall not, and shall cause its Affiliates not to, without the prior written consent of Seller, (i) “pull-and-refile,” pursuant to promptly take 16 C.F.R. § 803.12, any and all steps necessary filing made under the HSR Act or (ii) offer, negotiate or enter into any commitment or agreement, including any timing agreement, with any Governmental Authority to avoid delay the consummation of, to extend the review or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign investigation period applicable to, or U.S. federalnot to close before a certain date, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination DateTransaction.
(c) Without limiting In furtherance of the foregoing, to the Purchaser extent required or advisable, Parent shall, and shall cause its Affiliates to, offer, propose, negotiate, agree to, commit to and effect, by consent decree, hold separate order or otherwise, (i) divestitures, sales, transfers or other dispositions of, licenses of, or hold separate or similar arrangements with respect to the business, assets or interests of the Company Group, (ii) the termination, amendment, assignment or creation of relationships, contractual rights or obligations, ventures or other arrangements of the Company Group, (iii) conduct of business restrictions, including restrictions on the Company Group’s ability to manage, operate or own any assets, product lines, businesses or interests, (iv) any other change or restructuring of the Company Group and other actions and non-actions with respect to businesses, assets or interests of the Company Group and (v) any other condition, commitment, remedy or undertaking of any kind, in each case of (i)-(v), to the extent necessary (x) to obtain a waiver, consent, clearance, approval or waiting period expiration or termination of any Governmental Authority or (y) to avoid the application of any Antitrust Law, or any Action pursuant to any Antitrust Law, that would preclude the consummation of the Transaction prior to the Outside Date. Parent and the Seller shall, and shall cause their respective Affiliates to useto, use their reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities avoid the entry of any Order that would restrain, prevent, materially delay, unwind, declare void or unlawful, or otherwise prohibit the Closing and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, Transaction; provided, however, that notwithstanding none of Parent or the Seller shall have any obligation to defend, contest or litigate any Action by any Governmental Authority or other Person. Notwithstanding anything to the contrary contained in this Agreement, the Purchaser (Parent shall not, and none of its Affiliates) shall not Affiliates shall, be required to offer, propose, negotiate, agree to, commit to or effect, by consent decree, hold separate order or otherwise, (i) proffer or consent to a Judgment or consent order providing for the sale divestitures, sales, transfers or other dispositiondispositions of, licenses of, or hold separate or similar arrangements with respect to any of Parent’s or its Affiliates’ (other than the holding separateCompany Group’s) businesses, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities)interests, (ii) proffer the termination, amendment, assignment or consent to any creation of relationships, contractual rights or obligations, ventures or other restriction, prohibition arrangements of Parent or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon Company Group’s), (iii) conduct of business restrictions on Parent’s or its Affiliates’ (other than the ClosingCompany Group) shall be required ability to sellmanage, divest, dispose of operate or enter into own any other arrangements, or take any other Antitrust Remedial Action with respect to, their businessesassets, product lines, businesses or interests of Parent, or its Affiliates (other than the Company Group) or (iv) any other change or restructuring of Parent or its Affiliates (other than the Company Group) and other actions and non-actions with respect to businesses, assets or operations pursuant to this Section 7.01 interests of Parent or any its Affiliates (other provision of this Agreement, and than the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial ActionsCompany Group).
(d) Nothing in this Agreement Each Party shall, and shall require any party to take or agree to take any action with respect to cause its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall Affiliates to, (i) control respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information or documents in connection with the strategy for obtaining Transaction; (ii) allow the other Parties a reasonable opportunity to review in advance and comment on any Consents and all filings, forms, notices, registrations, notifications and other submissions in connection with the HSR Act and other Antitrust Laws and Insurance Laws related to the Transaction; (iii) promptly notify the other Parties of any written communication from any Governmental Authority in connection with the Transactions; provided that Transaction and permit the Purchaser shall consult other Parties to review reasonably in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in advance any filing or submission with a Governmental Authority in connection with the Transactions and proposed written communication in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
foregoing (e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect Parties in connection therewith); (iv) not agree to such filing, submissionparticipate, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personto permit its Affiliates to participate, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult meeting or discussion with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection respect of any filings, forms, notices, registrations, notifications, submissions, investigations or inquiries concerning the Transaction unless it consults with the Transactions, other than “Transaction-Related Documents” Parties in advance and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and Parties the reasonable opportunity to attend and participate inthereat; (v) furnish the other Parties with copies of all correspondence, substantive meetings filings and conferencescommunications (and summaries of oral communications) between it and its Affiliates, on the one hand, and any Governmental Authority, on the other hand, with respect to the Transaction; (vi) promptly provide the other Parties with any information or documentation reasonably required by the other Parties in order to respond to any inquiry or request from any Governmental Authority in relation to the HSR Act or any other Antitrust Law or Insurance Law; and (vii) promptly inform the other Parties of any material developments and keep the other Parties reasonably informed of the progress of any investigations or inquiries by any Governmental Authorities.
(fe) In furtherance Parent shall not, and shall not permit its Affiliates to, take any action, or refrain from taking any action, that would reasonably be expected to materially delay, impede or prevent the ability of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order Parties to consummate the TransactionsTransaction as soon as possible, and in any event, prior to the Outside Date. The Purchaser Without limiting the generality of the foregoing, Parent shall not, and shall not permit its Affiliates shall to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets or business, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably cooperate and consult with be expected to (i) impose any material delay in the Seller and its Affiliates in such efforts, including the execution obtaining of, or consenting tomaterially increase the risk of not obtaining, FPA Section 203-related applications any consent, clearance or submissions with FERC, including approval of any inquiries from staff, which applications Governmental Authority necessary to consummate the Transaction or submissions shall be made as soon as practicable, but in no event later than ten the expiration or termination of any applicable waiting period or (10ii) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and otherwise materially delay or prevent the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Transaction. Notwithstanding anything to the contrary in this AgreementSection 7.07(e), Parent shall be permitted to complete the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01acquisitions set forth on Schedule IV.
Appears in 1 contract
Sources: Transaction Agreement (Baldwin Insurance Group, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall, and shall cause their respective Affiliates to, cooperate with each other and use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Law to cause consummate the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as promptly as practicable, including (a) the obtaining of all necessary consents, approvals or waivers from Third Parties, (b) preparing and filing as promptly as practicable and to consummate and make effective, in after the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents documents, (including with respect to any c) obtaining and maintaining all approvals, consents, registrations, Permits, including Environmental Permits)authorizations, (ii) obtaining all Consents (including with respect licenses, waivers and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party necessary, proper or advisable that are necessary to consummate the Transactions transactions contemplated by this Agreement, (d) defending or contesting (including through litigation on the merits) any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and (iiie) executing and delivering any additional instruments necessary to consummate the Transactionstransactions contemplated hereby; provided, however, that in no event shall Parent, the case Company or any of each their Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any Third Party for any consent or approval required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the transactions contemplated by this Agreement under any contract or agreement.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, Parent and the Company shall, and shall cause their respective Affiliates to, (1) make (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event within ten (10) Business Days after the date hereof) and (ii) other appropriate filings necessary pursuant to any Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as promptly as practicable, in each case with respect to the Transactions transactions contemplated hereby, (which shall 2) comply at the earliest practicable date with any request under any of the early termination Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (3) cooperate with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any waiting period applicable to the Transactions under the HSR Act) and any required notification Governmental Authority under any other of the Antitrust Laws with respect to any such filing or any such transaction. In furtherance and not in limitation of the foregoing, as promptly as reasonably practicable following the date of this Agreement, Parent and Company shall (x) submit a draft joint voluntary notice to CFIUS and (y) submit a final joint voluntary notice to CFIUS, each with regard to this Agreement and other related information pursuant to Section 721 of the Defense Production Act of 1950, as amended. Each of Parent and the Company shall respond to any request for information from CFIUS in the timeframe set forth in the CFIUS regulations, 31 C.F.R. Part 800; provided, however, that either party, after consultation with the other party, may request in good faith an extension of time pursuant to 31 CFR § 800.403(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any event with respect extension that causes CFIUS to filings reject the voluntary notice filed by the parties or modifies the time for completion of the CFIUS review or investigation. Each such party shall use its best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the HSR Act within ten (10) calendar daystransactions contemplated by this Agreement. Each such party shall as promptly as practicable inform the other parties hereto of any oral communication with, providedand provide copies of written communications with, that the obligation to make any Governmental Authority regarding any such filings or any such transaction except such written communications conveying the “personal identifier information” required under 31 CFR § 800.402(c)(6)(vi)(B). No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to Applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under any of the Antitrust Laws or Regulatory Laws. Notwithstanding anything in the foregoing to the contrary, any such disclosures, rights to participate or provisions of information by one party to the other may be automatically extended made on a daycounsel-foronly basis (counsel to include outside counsel and relevant in-day basis for house counsel handling proceedings under any Antitrust Laws or Regulatory Laws) if allowed or required under Applicable Law, and further, either party may in good faith reasonably withhold from disclosure to the other party privileged or classified information, and sensitive personal data.
(c) Notwithstanding anything herein to the contrary: (i) Parent shall take, and shall cause its Affiliates to take, any and all action necessary, including but not limited to (A) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Affiliates; (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Affiliates; (C) terminating any venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Affiliates, (E) agreeing to mitigation measures regarding post-closing operations of the Company or its Affiliates required by the National Security Authorities or (F) effectuating any other change or restructuring of the Company or Parent or their respective Affiliates (and, in each calendar day during which filings cannot be submitted due case, to a enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with: (x) the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, the European Commission or any other competition authority of any jurisdiction (“Antitrust Authority”); (y) CFIUS, the President of the United States, the United States federal government shutdown following Department of Defense (including the date Defense Security Services), the United States Department of this AgreementState, the United States Department of Energy or the United States Department of Justice (collectively, the “National Security Authorities”, and, collectively with the Antitrust Authority, the “Regulatory Authorities”); or (z) all other Governmental Authorities; in connection with any of the foregoing (each a “Divestiture Action”)), and (ii) supply Company and its Subsidiaries shall, upon request by Parent, consent and/or agree as needed in order to effectuate a Divestiture Action to the extent such action relates to the Company or its Affiliates or its or their businesses or assets, in the case of each of clause (i) and (ii), to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger (“Regulatory Prohibition”), or to ensure that no Regulatory Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger fails to do so, by the End Date; provided, however, that any action under this subparagraph (c), by Parent, the Company or their Affiliates is not required unless conditioned upon consummation of the Merger. Further, Parent and the Company shall not take, and shall not permit their respective Affiliates to take, any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or lines of business similar to the Company’s products, services or lines of business) if such action would make it materially more likely that there would arise any impediments under any Antitrust Law or any Regulatory Law that may be asserted by any Governmental Authority to the consummation of the transactions contemplated hereby as promptly as practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law or any Regulatory Law, Parent shall, and shall cause its Affiliates to, defend and contest (including through litigation on the merits), or otherwise resolve, the action (with the Company’s cooperation), and shall take all other actions necessary, including but not limited to any Divestiture Action, to allow the consummation of the transactions by the End Date. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, Parent shall take, and shall cause its Affiliates to take, as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid vacate, modify or eliminate each suspend such injunction or order so as to permit such consummation by the End Date. The Company shall cooperate with Parent and every impediment shall use its best efforts to assist Parent in resisting any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and obtain in negotiating and conducting any Divestiture Action. Without limiting the obligations set forth in this Section 8.01, Parent shall control and lead all Consents actions, strategy and communications, and make all determinations as to the appropriate course of action and the timing of all actions and communications, with respect to Antitrust Laws, Regulatory Laws, Regulatory Authorities and all other related matters, including dealings with Regulatory Authorities and any Divestiture Actions or litigation under any Antitrust Laws or Regulatory Laws; provided, however, that may Parent shall, and shall cause its Affiliates to, to the extent permitted by Applicable Law and Governmental Authority, (i) if practicable under the circumstances and without causing undue delay or impeding Parent’s ability to satisfy its obligations in this Section 8.01(c), consult with the Company in advance of any meeting, teleconference or other communication with such Governmental Authority and provide the Company with an opportunity to attend or participate in such meeting, teleconference or other communication, (ii) afford the Company an opportunity to review any written advocacy materials to be required submitted to such Governmental Authority in advance of the submission thereof, and (iii) furnish the Company with copies of all written materials received by any foreign or U.S. federal, state or local on behalf of such party from such Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoingextent permitted by Applicable Law. The Company shall not, the Purchaser and the Seller shallwithout Parent’s prior written consent or request, and shall cause their respective Affiliates to usecommunicate, reasonable best efforts to cooperate in good faith offer, negotiate, or agree or bind itself or Parent, with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding any Regulatory Authority or other third party regarding any Divestiture Action. Notwithstanding anything to the contrary in this Agreement, the Purchaser (process for obtaining CFIUS approval shall be managed jointly by Parent and its Affiliates) Company, Parent and Company shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect jointly make all final determinations as to the Transactions appropriate course of action and all communications and filings (any including, a withdrawal of the actions described in the foregoing clause (i)submission) to and with CFIUS shall be jointly coordinated between Parent and Company. However, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from Parent shall make final determinations concerning agreements and after the Closing and (B) individually or in the aggregate, would not reasonably be expected undertakings to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter entered into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the ClosingCFIUS. The Purchaser Company and Parent shall (i) control the strategy permit counsel for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect in connection with, any proposed written communication to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division Governmental Authority. Each of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority Company and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject Parent agrees not to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears participate in any filing made withsubstantive CFIUS-related meeting or discussion, either in person or written materials submitted toby telephone, any third Person or with any Governmental Authority in connection with the Transactionsproposed transactions unless it consults with the other party in advance and, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Authority, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and party the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(fd) In furtherance For purposes of this Agreement, “Regulatory Law” means the Defense Production Act of 1950, as amended, the International Traffic in Arms Regulations (“ITAR”), applicable requirements of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01National Industrial Security Program, the Seller Export Administration Regulations, the embargoes and restrictions administered by the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 United States Office of Foreign Assets Control and any Executive Orders of the FPA in order to consummate the Transactions. The Purchaser President regarding embargoes and its Affiliates shall reasonably cooperate restrictions on trade with designated countries, entities and consult with the Seller persons, and its Affiliates in such effortsall other federal, including the execution ofstate or foreign statutes, or consenting torules, FPA Section 203-related applications or submissions with FERCregulations, orders, decrees, administrative and judicial doctrines and other Applicable Laws, including any inquiries from staffApplicable Laws related to antitrust, which applications competition or submissions shall be made as soon as practicabletrade regulation, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant that are designed or intended to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) prohibit, restrict or regulate actions having the parties acknowledge that the execution purpose or effect of this Agreement and the consummation monopolization or restraint of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)trade or lessening competition through merger or acquisition, (ii) regulate the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days business or operations of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to Subsidiaries or (iii) protect the extent permitted under ISRA, will provide a self guarantee in lieu national security or the national economy of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchasernation.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties shall, and the Seller shall cause their respective Subsidiaries and controlled Affiliates to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, fulfill all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing applicable to be satisfied as promptly as practicable such party pursuant to this Agreement and to consummate and make effective, in the most expeditious manner reasonably practicable, the TransactionsMerger and the other transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation using reasonable best efforts to effect (A) obtain all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Company Approvals and the Parent Approvals, from applicable Governmental Entities and Self-Regulatory Organizations and (B) make all necessary registrations and filings and use reasonable best efforts to take all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an Action by, any Governmental Entity or Self-Regulatory Organization, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties (including with respect to any Permits, including Environmental Permitsother than Governmental Entities or Self-Regulatory Organizations) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing the execution and delivering delivery of any additional instruments reasonably necessary to consummate the Transactionstransactions contemplated by this Agreement; provided, however, that in no event shall the case Company or any of each its controlled Affiliates be required to (A) pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval under any contract or agreement required for the consummation of clauses the transactions contemplated by this Agreement or (iB) through (iii)agree to any material term, condition, obligation, restriction, requirement, limitation, qualification, remedy or other than action imposed, required or requested by any Governmental Entity in connection with its grant of any nonactions, waivers, consents, clearances, approvals with respect to filingsthe transactions contemplated by this Agreement, noticesincluding the Company Approvals and Parent Approvals, petitionsunless such term, statementscondition, registrationsobligation, submissions restriction, requirement, limitation, qualification, remedy or other action imposed is binding on the Company or any of information, applications and other Consents relating to Antitrust Laws, which are dealt with its controlled Affiliates only in Section 7.01(b), (c) and (d)the event that the Closing occurs.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant Subject to the HSR Act with respect to terms and conditions herein provided (including, for the Transactions (which shall request avoidance of doubt, the early termination proviso in the first sentence of any waiting period applicable to the Transactions under the HSR ActSection 5.6(a)) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without without limiting the foregoing, the Purchaser Company, Parent and the Seller Merger Sub shall, and shall cause their respective Subsidiaries and controlled Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicablepromptly, but in no event later than ten (10) calendar days Business Days after the date of hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement. The Purchaser , and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use reasonable best efforts to obtain the Regulatory Approvals (and in the case of the Company and its Affiliates applicable Insurance Subsidiaries, the Loss Portfolio Approvals), (iii) promptly, but in no event later than twenty-five (25) Business Days after the date hereof give, file or make the Notices specified on Section 6.1(c) of the Company Disclosure Schedules (other than Biographical Affidavits, fingerprints and financial information regarding any individuals, which shall be filed within thirty (30) Business Days after the date hereof), (iv) in the case of the Company, promptly, but in no event later than thirty (30) Business Days after the date hereof, file or make all necessary postthe Loss Portfolio Approvals, (v) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities or Self-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In Regulatory Organizations in connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution and delivery of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party transactions contemplated hereby and (B) the Seller shall (x) make promptly as reasonably practicable making all other governmental such filings and submissions timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods, (vi) supply to the relevant Governmental Entity or Self-Regulatory Organization as promptly as reasonably practicable any additional information or documents that may be required by any Law or reasonably requested by such Governmental Entity or Self-Regulatory Organization and in the case of Parent, promptly as reasonably practicable provide, or cause to be provided, all information, including copies of all agreements, documents and instruments, as well as affidavits, statements or other information, that may be required or reasonably requested by any Governmental Entity relating to Parent (including any of its directors, officers, employees, partners, members or shareholders) and all persons who will “control” Parent or Merger Sub within the meaning of applicable Insurance Laws (including any of their respective directors, officers, employees, partners, members or shareholders), or its or their structure, ownership, businesses, operations, regulatory and legal compliance, assets, liabilities, financing, financial condition or results of operations, or any of its or their directors, officers, employees, partners, members or shareholders, and (vii) use reasonable best efforts to take all actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to consummate the transactions contemplated by this Agreement as soon as reasonably possible, including the prompt use of its reasonable best efforts to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary injunction or other actions necessary order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement. All filings and presentations made available to comply the public or to third parties (including Governmental Entities) that are made by or on behalf of Parent or any of its control persons under applicable Law in connection with ISRA the transactions contemplated by this Agreement that include or require a description of, or an attachment of, any plans for the business, operations or management of the Company or any of its Subsidiaries after the Closing shall be consistent in all material respects with the summary business plan provided by Parent to the Company on January 14, 2021 (as a result the “Summary Business Plan”). Nothing herein shall require Parent or Merger Sub or any of their respective controlled Affiliates or any of Parent’s direct or indirect equity holders to initiate, defend, maintain, or participate in any Action in connection with the transactions contemplated hereby or their respective obligations set forth herein.
(c) Without limitation to the foregoing, Parent shall not, and shall cause its controlled Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and secure the expiration or termination of any applicable waiting period under the HSR Act; (ii) materially increase the probability of any Governmental Entity entering an order prohibiting the consummation of the Transactions), including causing transactions contemplated by this Agreement; (iii) materially increase the Company risk of not being able to execute an “ISRA Remediation Certification” form remove any such order on appeal or otherwise; or (iv) otherwise impair or delay the ability of Parent and Merger Sub to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted perform their material obligations under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserthis Agreement.
(hd) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not be obligated to (i) take, or refrain from taking, and no party shall agree to Parent, any Investor, the Seller and Company or any of its Subsidiaries or any of their respective controlled Affiliates taking or refraining from taking, any action, or (ii) permit or suffer to exist any condition, limitation, restriction, or requirement that, individually or in the aggregate, with any other actions, conditions, limitations, qualifications, restrictions or requirements (each, a “Condition”) that would constitute a Burdensome Condition. A “Burdensome Condition” shall have no obligation mean any Condition imposed by a Governmental Entity on its grant of any consent, authorization, order, approval, expiration or termination of waiting periods or exemption set forth in Section 6.1(c) that, individually or in the aggregate with all such Conditions would or would reasonably be expected to: (i) require the contribution of capital or the provision of any guarantee, keep-well or capital or surplus maintenance agreement, or pledge of assets or similar arrangement by Parent or any Investor (other than any capital requirements set forth in the Summary Business Plan); (ii) restrict the payment or declaration of dividends or distributions by any Insurance Subsidiary (other than restrictions or conditions on extraordinary dividends set forth in the applicable Laws in the state of domicile of the relevant Insurance Subsidiary that are generally applicable to pay money similarly situated insurance companies domiciled in the relevant state) for a period greater than two (2) years from the Closing Date; (iii) be adverse to a material extent to the business, assets, liabilities, results of operations or offer or make any concession or grant any accommodation condition (financial or otherwise) of Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, after the Closing; (iv) materially increase the amount of capital required to implement in all material respects the Summary Business Plan as compared to the capital set forth in the Summary Business Plan; (v) require any modification or amendment of the Loss Portfolio Binder, the Loss Portfolio Contract or the Reinsurance Agreement or require the termination of any of the foregoing, in each case, that would have a non-de minimis adverse impact on Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, after the Closing; (vi) require any modification or amendment of, or any adverse deviation, in each case, in any material respect from the Summary Business Plan; or (vii)(A) restrict the operations of business or use of properties of any Investor after the Closing Date, other than restrictions on the businesses or assets of the Company, Parent, or their respective Subsidiaries, (B) prohibit any Investor from engaging in, investing in or acquiring any type or line of business or (C) require any Investor to divest or dispose of any business or assets. Without limiting and in furtherance of the parties’ obligations otherwise set forth in this Section 5.6, prior to Parent being entitled to invoke a Burdensome Condition, the parties and their respective controlled Affiliates and Representatives shall promptly confer in good faith in order to (1) exchange and review their respective views and positions as to any Burdensome Condition or potential Burdensome Condition; (2) discuss in good faith potential approaches that would avoid such Burdensome Condition or mitigate its impact including with respect to further discussions with or analyses or other information to be provided to any Governmental Authority Entity; and (3) negotiate in good faith with respect to any potential modification of the terms of this Agreement or the other third party agreements or transactions contemplated hereby, on mutually acceptable terms and on an equitable basis, in connection with a way that would substantially eliminate any such Burdensome Condition or sufficiently mitigate its adverse effect so that it would no longer constitute a Burdensome Condition hereunder; provided that none of the performance Company, the Parent or Merger Sub shall be required to enter into an amendment or modification of their respective obligations under this Section 7.01Agreement or any of the agreements or transactions contemplated hereby pursuant to the process set forth in this sentence.
Appears in 1 contract
Efforts. (a) Subject Each of the Parties agrees to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their its respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable under this Agreement and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable practicable, including: (i) the obtaining of all necessary actions or nonactions, licenses, permits, orders, notifications, clearances, waivers, authorizations, expirations or terminations of waiting periods, clearances, Consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid any Action, injunction or proceeding by, any Governmental Entity, including in connection with any event prior Regulatory Law; (ii) the defending of any Actions challenging this Agreement or the consummation of the Transactions; (iii) the transfer of Merisant Venezuela SRL to an Affiliate of the Termination DateSeller that is not an Acquired Company; and (iv) the execution and delivery of any notification or additional instruments necessary to consummate this Agreement and the Transactions.
(cb) Without Subject to the terms and conditions herein provided and without limiting the foregoing, the Purchaser and the Seller Sellers agree: (i) to make or cause to be made an appropriate filing under the HSR Act as promptly as practicable, and in any event no later than ten (10) Business Days after the date of this Agreement; (ii) to make or cause to be made, as promptly as practicable, comparable notification filings, forms and submissions required under other Regulatory Laws with the Governmental Entities identified in Section 5.3(b) of the Sellers Disclosure Schedule (collectively, the “Governmental Consents”); and (iii) to cooperate with each other in (A) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any other Governmental Entities (including any non-U.S. jurisdiction in which the Business operates) and (B) to the extent not made prior to the date of this Agreement or otherwise, making, or causing to be made, as promptly as practicable, all such applications and filings and seeking all such actions or nonactions, licenses, permits, orders, clearances, waivers, authorizations, expirations or terminations of waiting periods, notifications, clearances, consents and approvals. Each Party shall respond as promptly as practicable to any request by any Governmental Entity for information, documentation, other material or testimony, including by responding at the earliest reasonably practicable date to any request under or with respect to the HSR Act filing, any other Governmental Consent, or any inquiry by any Governmental Entity, and any such other applicable Laws for additional information, documents or other materials received by the Sellers or the Purchaser or any of their respective Affiliates from any Governmental Entity regarding any matter with respect to the Transactions under any Regulatory Law. In furtherance and not in limitation of the foregoing, the Parties shall, and shall cause their respective Affiliates to useto, use reasonable best efforts to cooperate in good faith with undertake promptly any and all applicable Governmental Authorities and undertake action required to complete the Transactions as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions (but in any event prior to the Termination Outside Date) and any and all action necessary or advisable to avoid, providedprevent, eliminate or remove the actual or threatened commencement of any Action in any forum by or on behalf of any Governmental Entity or the issuance of any Order that notwithstanding anything to would delay, enjoin, prevent, restrain or otherwise prohibit the contrary in this Agreementconsummation of the Transactions, the Purchaser (and its Affiliates) shall not be required including to (ix) proffer or consent and/or agree to a Judgment any Order or consent order other agreement providing for the sale sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business or (y) promptly effect the disposition, licensing or holding separate of such party, including any assets or lines of business or (z) take any other remedy requested or proposed by any Governmental Entity, in each case, as may be necessary to permit the lawful consummation of the Transferred Entities (including the termination of any existing relationships Transaction on or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect prior to the Transactions (any of the actions described in the foregoing clause (i), (ii) Outside Date and except as would have or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to materially and adversely affect the Business, taken as a whole, following Closing. For The Sellers and the avoidance Purchaser shall only be required to undertake any action contemplated by the immediately preceding sentence in the event that such action is conditioned on the consummation of doubt the Transactions.
(c) The Sellers, on the one hand, and the Purchaser, on the other, shall each be responsible for fifty percent (50%) of all fees and payments owed to a Governmental Entity in order to obtain any Consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Agreement; provided, however, notwithstanding the foregoing, to the extent that the Transactions are consummated, the Purchaser shall be responsible for all administrative filing fees payable to any Governmental Entity in order to obtain any Consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Agreement and to the extent that the Sellers make any such payments prior to Closing, the Adjustment Amount will be modified in accordance with the terms set forth in the definition. Notwithstanding anything to the contrary in this Section 7.01 Agreement, under no circumstances shall the Sellers or any other provision of this Agreement, neither the Seller nor any of its their Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of make any expenditure or enter into give any other arrangements, or take commitment to any other Antitrust Remedial Action Person in connection with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or obtaining any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actionsconsent.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Without limiting the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development generality of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforerest of this Section 5.3, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate cooperate, as promptly as practicable, in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry and shall, subject to applicable Law and reasonable confidentiality considerations, as promptly as reasonably practicable (i) furnish to the other such necessary information and reasonable assistance as the other Party may reasonably request in connection with the foregoing; (ii) promptly notify and inform the other Party of any communication received from, or given by such Party or before any of their Affiliates to any Governmental Entity, regarding any of the Transactions; and (iii) provide counsel for the other Party with copies of all filings made by such Party, and all correspondence between such Party (and its advisors) with any Governmental Entity, and any other information supplied by such Party and such Party’s Affiliates to a Governmental Authority relating to Entity or received from such a Governmental Entity in connection with the Transactions; provided, including any proceeding initiated by a private personhowever, allow that materials may be provided on an outside counsel-only basis, and/or may be redacted (A) to remove references concerning competitively sensitive information and the valuation of the Business and the transactions contemplated thereby and (B) as necessary to comply with contractual arrangements. Each Party shall, subject to applicable Law, permit counsel for the other party Parties a reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect to such filingParty in connection with, submission, or substantive any proposed written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of draft filing, correspondence or submission to any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given Entity in connection with the Transactions. Each Party agrees not to participate, or to permit any proceeding by a private Personof its Affiliates or their respective Representatives to participate, in each case regarding any of the Transactionsmeeting or discussion, (iii) subject to applicable Laws relating to the exchange of informationeither in person or by telephone, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactions, unless it consults with the other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used Parties in the rules and regulations under the HSR Actadvance and, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and Parties the reasonable opportunity to attend and participate inparticipate.
(e) Any information provided to any Party or its Representatives to another Party or its Representatives in accordance with this Section 5.3 or otherwise pursuant to this Agreement shall be held by the receiving Party and its Representatives in accordance with, substantive meetings and conferencesshall be subject to, the confidentiality obligations set forth in the Confidentiality Agreement.
(f) In furtherance During the period from the date hereof until the earlier of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution termination of this Agreement in accordance with its terms and the Closing Date, the Parties shall not, and shall not permit any of their Affiliates to, knowingly take any action that could prevent, materially delay or materially impede the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seqTransaction., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Purchase Agreement (Act II Global Acquisition Corp.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under Applicable Laws or otherwise to consummate and make effective, in effective the most expeditious manner Transactions as promptly as practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or non-actions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, applications and other documents (including with respect clearance or waiver from, or to avoid an action or proceeding by, any PermitsGovernmental Authority, including Environmental Permitsin connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the delivery of required notices to, and the obtaining of all Consents necessary consents, approvals or waivers 66 from third Persons and (including with respect to iii) the defending of any Permits, including Environmental Permits) from Proceedings by any Governmental Authority or any other Person challenging this Agreement or the consummation of the Transactions; provided that in no event shall the Company or any of the Company Subsidiaries be required to pay prior to the Closing any fee, penalty or other consideration to any third party necessary, proper Person for any consent or advisable to consummate approval required for the consummation of the Transactions under any Contract. Parent shall not and (iii) executing and delivering shall cause its Affiliates to not make any additional instruments necessary investment, acquisition, joint venture or any other business combination if such investment, acquisition, joint venture or business combination would reasonably be expected to consummate materially delay, impede or prevent the Transactions, satisfaction of the Offer Conditions set forth in the case of each of clauses (iii) through or (iii)iii)(A) of Exhibit A (but for purposes of clause (iii)(A) of Exhibit A only if any such Order or Applicable Law arises under any Regulatory Law. The Company shall not and shall cause the Company Subsidiaries to not make any investment, acquisition, joint venture or any other than with respect business combination if such investment, acquisition, joint venture or business combination would reasonably be expected to filingsmaterially delay, notices, petitions, statements, registrations, submissions impede or prevent the satisfaction of information, applications and other Consents relating to Antitrust Laws, which are dealt with the Offer Conditions set forth in Section 7.01(b), clauses (cii) and or (d)iii)(A) of Exhibit A (but for purposes of clause (iii)(A) of Exhibit A only if any such Order or Applicable Law arises under any Regulatory Law.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall cooperate with each other in (i) make an appropriate filing of a Notification determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or any Company Subsidiary is operating any business) and Report Form pursuant (ii) to the HSR Act with respect extent not made prior to the Transactions (which shall request date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws Company as promptly as reasonably practicable following the date of this Agreement, (and in any event within 10 Business Days after the date hereof with respect to filings made pursuant to or submissions required under the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings Act). Each party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary such information, documentation, other material or testimony that may be requested pursuant by any Governmental Authority, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act Act, the EU Merger Regulation, any other Governmental Consent and any such other Antitrust Applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the FTC or the DOJ, or any other Governmental Authority in connection with such applications or filings or the Transactions.
(c) Subject to Section 6.11(e), Parent and Merger Sub shall take all such further action as may be necessary to promptly take resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other Person, may assert under any Applicable Law with respect to the Transactions, and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Applicable Law that may be required asserted by any foreign or U.S. federal, state or local Governmental AuthorityPerson with respect to the Merger, in each case with competent jurisdiction so as to enable the parties hereto Transactions to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior to no later than the Termination End Date.
(c) Without limiting ). Neither the foregoing, the Purchaser and the Seller Company nor any Company Subsidiary shall, without Parent’s prior written consent, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller Parent nor any of its Affiliates (other than Subsidiaries shall, without the Transferred Entities effective upon Company’s prior written consent, discuss or commit to any extension of any waiting period under any Applicable Law or any agreement not to consummate the Closing) Transactions. None of Parent, Merger Sub or the Company shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations action pursuant to this Section 7.01 or any other provision of this Agreement, and 6.11 unless it is expressly conditioned on the “reasonable best efforts” effectiveness of the Seller shall not include taking any of the Antitrust Remedial ActionsMerger.
(d) Nothing in this Agreement shall require any party Without limiting the foregoing and subject to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken applicable legal limitations and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and instructions of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to Company and Parent agrees (i) to cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating material actions pursuant to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationthis Section 6.11, (ii) keep to furnish to the other parties hereto informed such necessary information and assistance as the other may reasonably request in all material respects and on a reasonably timely basis connection with its preparation of any material communication notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC any third party or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of respect to the Transactions, (iiiiv) subject to applicable Laws relating permit the other party to the exchange of information, review and to the extent reasonably practicable, consult with incorporate the other parties hereto party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to information relating obtaining the necessary approvals for the Transactions, and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or transactions contemplated herein with any Governmental Authority in connection with the TransactionsTransactions unless, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Authority, the DOJ, FERC or such other applicable Governmental Authority or other Person, give it gives the other parties hereto prompt party reasonable notice of, thereof and the reasonable opportunity to attend and participate inobserve. The parties shall take commercially reasonable efforts to share information protected from disclosure under the attorney-client privilege, substantive meetings work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.11 in a manner so as to preserve any applicable privilege. Parent and conferencesthe Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.11(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(he) Notwithstanding anything to the contrary in this Agreement, none of the Seller Company, Parent, Merger Sub or any of their respective Subsidiaries shall be required to (and its Affiliates shall have no obligation to pay money the Company may not, without the prior written consent of Parent) become subject to, consent to, or offer or make agree to, or otherwise take any concession action with respect to, any requirement, condition, limitation, understanding, agreement or grant order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any accommodation (financial assets, business or otherwise) to portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any Governmental Authority or other third party in connection with the performance of their respective obligations under Subsidiaries or Affiliates, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates in any manner, or (iii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates.
(f) For purposes of this Section 7.01Agreement, “Regulatory Law” means the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and all other federal, state, foreign, multinational or supranational Applicable Laws or Orders, including any antitrust, competition or trade regulation Applicable Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and including any Applicable Laws that relate to foreign investments.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller shall other Transaction Documents, each party hereto will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable desirable under applicable law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, the parties hereto will (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(b) and Section 3.1(d), use their reasonable best efforts to obtain as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as practicable and fully all documentation to effect all necessary filingsadvisable, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other parties hereto in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the parties hereto agrees to foregoing, (i1) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d), but in any event within ten (10) Business Days of the date of this Agreement, unless a later date is mutually agreed between the parties), the parties will file the Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice (the date on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date”) and (2) as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)), file, make or give, as applicable, all other filings, requests and/or notices required under any other Antitrust Laws, in each case with respect to the Equity Transactions (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (1) and (2), collectively, the “Initial Antitrust Filings”). In addition, if, on or prior to the one-year anniversary of the date on which the Initial Antitrust Clearance was obtained, the IOMS Rights Holder and its Designees (for the avoidance of doubt, expressly including for this purpose any Warrantholder (as defined in Warrant 1) pursuant to the exercise in-part of Warrant 1 pursuant to the terms thereof during the Warrant 1 Special Exercise Period) have not exceeded the then-current $500 million (as adjusted) or greater notification threshold under HSR Act Rule 801.1(h), 16 C.F.R. § 801.1(h), as promptly as practicable and advisable (as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d), but in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar daysBusiness Days of such one-year anniversary, providedunless a later date is mutually agreed between the parties), that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a parties will file the Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States federal government shutdown Department of Justice with respect to the Equity Transactions in order to exceed the then-current $500 million (as adjusted) or greater notification threshold under HSR Act Rule 801.1(h), 16 C.F.R. § 801.1(h) (but not, for purposes of such filing, any greater notification threshold) (the “Second HSR Filing”, and the date on which all such Notification and Report Forms comprising the Second HSR Filing shall have been initially filed, the “Second HSR Filing Date”). In addition, following the date receipt of this Agreementthe Initial Antitrust Clearance, to the extent required by applicable law (including, for the avoidance of doubt any Antitrust Law) in connection with any acquisition of shares of Common Stock comprising all or any portion of the Equity Transactions (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as practicable and advisable (ii) as determined in good faith by Walgreens in accordance with the first sentence of Section 3.1(d)), any further required filings, requests and/or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings” and any such acquisitions, “Other Equity Transactions”, provided that “Other Antitrust Filings” shall not include the Second HSR Filing). Without limiting the generality of the foregoing, each party agrees to supply as promptly as reasonably practicable and advisable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act and such or any other Antitrust Laws Laws.
(c) Subject to the terms and conditions hereof (including the remainder of this Section 3.1) and the other Transaction Documents, each of the parties hereto agrees to promptly take any and all steps necessary use its reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required asserted by any foreign or U.S. federalGovernmental Entity, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior give effect to the Termination Date.
(c) Without limiting transactions contemplated hereby and by the foregoing, other Transaction Documents in accordance with the Purchaser terms hereof and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, thereof; provided, that notwithstanding anything to the contrary contained herein or in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i)other Transaction Documents, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary nothing in this Section 7.01 3.1 shall require, or be construed to require, any other provision of this Agreement, neither the Seller nor party hereto or any of its Affiliates to agree to (and no party hereto (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action Walgreens with respect to its business and/or its Affiliates own assets, businesses or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority interests, in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or each case other inquiry or litigation by or before, than WBAD or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act its subsidiaries) or any other Antitrust Laws or enter into a timing agreement with any Governmental Authorityof its Affiliates will agree to, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to parties): (i) cooperate in all respects with each other in connection with sell, hold separate, divest, discontinue or limit (or any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority conditions relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submissionto, or substantive written communication in advancechanges or restrictions in, and consider in good faith the views operation of) any assets, businesses or interests of it or its Affiliates (irrespective of whether or not such other party with respect to such filingassets, submissionbusinesses or interests are related to, are the subject matter of or substantive written communication, could be affected by the transactions contemplated by the Transaction Documents); (ii) keep without limiting clause (i) in any respect, any conditions relating to, or changes or restrictions in, the other parties hereto informed in all material respects and on a reasonably timely basis operations of any material communication received by such party fromassets, businesses or interests that would reasonably be expected to adversely impact (x) the business of, or given by such party tothe financial, the Antitrust Division business or strategic benefits of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC transactions contemplated hereby or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject other Transaction Documents to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company it or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to other assets, businesses or interests of it or its Affiliates; or (iii) without limiting clause (i) in any Non-Legacy Environmental Liability required to comply with ISRArespect, in accordance with any modification or waiver of the terms and conditions of Section 10.05(cthis Agreement or any of the other Transaction Documents that would reasonably be expected to adversely impact (x) and using a licensed site remediation professional reasonably acceptable the business of, or financial, business or strategic benefits of the transactions contemplated hereby or by any of the other Transaction Documents to Purchaser.
it or its Affiliates, or (h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.y)
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective all reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause consummate and make effective the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as promptly as practicable after the date hereof and in any event prior to consummate and make effective, in the most expeditious manner practicable, the TransactionsEnd Date, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrations, submissions approvals and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and delivering the other transactions contemplated by this Agreement, (iv) the execution and delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated by this Agreement and (v) promptly, but in no event later than 15 Business Days after the case of each of clauses (i) through (iii)date hereof, other than with respect file or cause to filings, notices, petitions, statements, registrations, submissions of informationbe filed any and all required notifications, applications and other Consents relating filings set forth on Section 5.7(a) of the Company Disclosure Letter; provided, however, that in no event shall the Company or any of its Subsidiaries be required to Antitrust Lawspay, which are dealt with in Section 7.01(b)or pay any non-de minimis amounts without the prior written consent of Parent, (c) and (d)prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company, Parent and its Subsidiaries and Merger Sub shall (i) make an appropriate filing of a Notification promptly, but in no event later than 15 Business Days after the date hereof, file or cause to be filed any and Report Form pursuant to all required notification and report forms under the HSR Act with respect to the Transactions (which shall request Merger and the early other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any applicable waiting period applicable to the Transactions periods under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) use all reasonable best efforts to cooperate with each other in (A) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any Governmental Entities pursuant to any Antitrust Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods, (iii) supply or cause to be supplied to any Governmental Entity pursuant to any Antitrust Law as promptly as reasonably practicable any additional information and documentary material or documents that may be requested pursuant to any such Antitrust Law or by such Governmental Entity pursuant to any Antitrust Law and (iv) take, or cause to be taken, all such further action as may be necessary to resolve such objections, if any, as the HSR Act United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, or any other Governmental Entity may assert pursuant to any Antitrust Law with respect to the transactions contemplated hereby, and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as reasonably practicable after the date hereof (and in any event prior no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license, hold separate or disposition of any and all of the share capital or other equity voting interest, assets (whether tangible or intangible), products or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or their ability to retain, one or more of their Subsidiaries’ (including the Surviving Corporation’s) assets (whether tangible or intangible), products, or businesses, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action pursuant to any Antitrust Law that would otherwise have the effect of preventing the Closing, delaying the Closing or delaying the Closing beyond the End Date; provided that with respect to the Termination Date.
(c) Without limiting matters in this Section 5.7, Parent shall in any event control the foregoing, strategy and process relating to obtaining all approvals under any Antitrust Law so long as Parent reasonably consults in advance with the Purchaser Company and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate considers in good faith the views of the Company with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding respect thereto. Notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary nothing in this Section 7.01 5.7(b) or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing elsewhere in this Agreement shall require any party Parent or Merger Sub to take or agree to take any action with respect to any of their Affiliates (other than Parent, the Surviving Corporation and their Subsidiaries), including selling, divesting, conveying, holding separate or otherwise limiting its business freedom of action with respect to any assets, rights, products, licenses, businesses, operations or operations unless interest therein of any such Affiliates (other than Parent, the effectiveness Surviving Corporation and their Subsidiaries) or any direct or indirect portfolio companies of such investment funds advised or managed by one or more Affiliates of Parent or Merger Sub (other than the Surviving Corporation and its Subsidiaries). Notwithstanding anything to the contrary in this Agreement, neither the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets, operations or business of the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to the Company or its Subsidiaries only from and after the Effective Time in the event that the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to take any action is conditioned upon that would be reasonably likely to prevent or materially delay the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(ec) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filingother actions pursuant to this Section 5.7(c), submission or substantive written communication with a and, subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any proceeding initiated by of their respective Subsidiaries or HSR Affiliates, from any third party and/or any Governmental Entity pursuant to any Antitrust Law with respect to such transactions and promptly notifying the other of any transaction or agreement to effect any transaction known to the Company, Parent, or their respective Subsidiaries or HSR Affiliates, which would reasonably be expected to, individually or in aggregate, prevent or materially delay or impede the ability of any of the parties hereto to obtain any necessary approvals or clearances of any Governmental Entity required for the transactions contemplated hereby; provided that the foregoing shall not apply to third-party hedge fund or asset managers in which KKR & Co. L.P. or any Affiliate thereof owns a private personminority stake. Subject to applicable Law relating to the exchange of information, allow the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity pursuant to any Antitrust Law. Any materials shared under this Section 5.7(c) may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or substantive written communicationproposals from third parties made prior to the date hereof with respect thereto, (iiy) keep the other parties hereto informed in all material respects as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns, and may be provided on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division an outside counsel only basis. Each of the Department of Justice (the “DOJ”)Company, the Federal Trade Commission (the “FTC”)Parent and Merger Sub agrees not to participate in any meeting or discussion, FERC either in person or by telephone, with any other Governmental Authority and of any material communication received or given Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party (or its outside counsel, as appropriate) the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.7, but subject to the other provisions of this Section 5.7, if any administrative or judicial action or proceeding, including any proceeding by a private Personparty, in is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each case regarding any of the TransactionsCompany, (iii) subject to applicable Laws relating to the exchange of information, Parent and to the extent reasonably practicable, consult Merger Sub shall cooperate in all respects with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant contest and resist any such Action or proceeding and to Section 203 of the FPA have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in order to consummate the Transactions. The Purchaser effect and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsthat prohibits, including the execution of, prevents or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the restricts consummation of the Transactions will require, Merger and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of other transactions contemplated by this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall each party will use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and doto do promptly, or cause to be donedone promptly, and to assist and cooperate with the each other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under Law to consummate and make effective, in effective the most expeditious manner practicable, Mergers and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing as promptly and fully as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any Permits, including Environmental Permits), third party and/or any Governmental Authority in order to consummate the Mergers and the other transactions contemplated by this Agreement and (ii) obtaining taking all Consents steps as may be necessary, subject to the limitations in this Section 7.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations.
(including with respect b) In furtherance and not in limitation of the covenants of the parties contained in Section 7.2(a), each of the parties shall give any notices to third parties, and each of the parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Permits, including Environmental Permits) from any Governmental Authority or third party consents that are necessary, proper or advisable to consummate the Transactions Mergers and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) transactions contemplated by this Agreement. Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant will furnish to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional necessary information and documentary material that reasonable assistance as the other may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority request in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development preparation of the positions to be taken and the regulatory actions to be requested in any filing required filings or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree submissions with any Governmental Authority and will cooperate in responding to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into inquiry from a timing agreement with any Governmental Authority, without the prior written consent of including promptly informing the other party.
(e) Each parties of the parties hereto shall use its reasonable best efforts such inquiry, consulting in advance before making any presentations or submissions to (i) cooperate in all respects with a Governmental Authority, and supplying each other in connection with copies of all material correspondence, filings or communications between either party and its Affiliates and any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the parties will consult with the other parties hereto with respect to others on, all the information relating to the other parties hereto others and each of their respective Subsidiaries, as the case may be, Affiliates that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the TransactionsMerger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in inquiry without giving the rules and regulations under the HSR Actother parties reasonable prior notice of such meeting or conversation and, and (iv) to the extent permitted by the FTCapplicable Law, the DOJ, FERC or such other applicable Governmental Authority or other Person, give without giving the other parties hereto prompt notice of, and the reasonable opportunity to attend and or participate in, substantive meetings and conferences(whether by telephone or in person) in any such meeting with such Governmental Authority.
(fc) In furtherance of the obligations set forth in Section 7.01(aconnection with obtaining any approval or consent from any Person (other than a Governmental Authority) and otherwise subject with respect to the terms of this Section 7.01Mergers, the Seller Company or any of its Affiliates shall not pay or commit to pay to any Person whose approval or consent is being solicited any cash or other consideration or incur any liability to such Person without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(d) Each of Parent and the Purchaser Merger Sub shall use their respective its reasonable best efforts to obtain approval from FERC pursuant cause Partner to Section 203 of effect the FPA in order to consummate the Transactions. The Purchaser Plan Closing as promptly as practicable and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Alternative Plan Sponsor Agreement, the Seller including by using reasonable best efforts to cause Partner to take all necessary or desirable action to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and its Affiliates shall have no obligation authorizations necessary or desirable to pay money or offer or make be obtained from any concession or grant any accommodation (financial or otherwise) to third party and/or any Governmental Authority or other third party in connection order to effect the Plan Closing in accordance with the performance of their respective obligations under this Section 7.01Alternative Plan Sponsor Agreement.
Appears in 1 contract
Sources: Merger Agreement (Welltower Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause consummate the conditions to the Closing to be satisfied as promptly as practicable Offer and to consummate and make effective, in effective the most expeditious manner Merger and the other transactions contemplated by this Agreement as soon as practicable, the Transactions, including (i) the preparing and filing promptly and fully all documentation to effect obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the preparing and making of all necessary registrations, submissions filings and notices and the taking of informationall steps as may be necessary to obtain an approval, applications and other documents (including with respect clearance or waiver from, or to avoid an Action or proceeding by, any Permits, including Environmental Permits)Governmental Entity, (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing satisfying the Tender Offer Conditions and delivering the conditions to the consummation of the Merger set forth in Article VII, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer and the Merger and the other transactions contemplated by this Agreement and (v) the execution and delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated by this Agreement; provided, however, that in no event shall the case Company or any of each its Subsidiaries be required to pay prior to the Effective Time any material fee, penalty or other consideration to any third party for any consents or approvals required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the transactions contemplated by this Agreement under any contract or agreement.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant Subject to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) terms and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (conditions herein provided and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without without limiting the foregoing, the Purchaser Company, Parent and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser Merger Sub shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicablepromptly, but in no event later than ten (10) calendar days Business Days, after the date of hereof, file any and all required Notification and Report forms under the HSR Act with respect to the Offer, Merger and the other transactions contemplated by this Agreement. The Purchaser , and its Affiliates shall make all necessary post-Closing use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use their reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and submissions pursuant expirations or terminations of waiting periods are required to FERC’s rulesbe obtained from, including all applicable deadlines.
(g) In any third parties or other Governmental Entities in connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution and delivery of this Agreement and the consummation of the Transactions will requiretransactions contemplated hereby and (y) timely preparing and making all such filings and timely preparing and obtaining all such consents, permits, authorizations or approvals, and (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity.
(c) Subject to applicable Law and the parties instructions of any Governmental Entity, the Company and Parent shall reasonably cooperate keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly (i) notifying the other party of any communication from any Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement, (ii) furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, consider in good faith the views of the other party in connection with, and incorporate the other party’s reasonable comments with respect to, compliance any proposed written communication to any Governmental Entity and/or any third party. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and proposed transactions unless it consults with the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible other party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliatesand, to the extent permitted under ISRAnot prohibited by such Governmental Entity, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate gives the Transactions (and provide Purchaser with a reasonable other party the opportunity to review attend and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserparticipate.
(hd) Notwithstanding anything to In furtherance and not in limitation of the contrary covenants of the parties contained in this AgreementSection 6.6, if any administrative or judicial Action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Seller Company and its Affiliates Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such Action or proceeding and to have no obligation to pay money vacated, lifted, reversed or offer or make overturned any concession or grant any accommodation (financial or otherwise) to any Governmental Authority decree, judgment, injunction or other third party order, whether temporary, preliminary or permanent, that is in connection with effect and that prohibits, prevents or restricts consummation of the performance of their respective obligations under Merger and the other transactions contemplated by this Section 7.01Agreement.
Appears in 1 contract
Sources: Merger Agreement (X Rite Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties hereto and the Seller use (and shall use cause their respective Subsidiaries and Affiliates to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing execute and delivering deliver any additional instruments necessary to consummate the Transactions, other than, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Laws, which are dealt with addressed in Section 7.01(b5.03(c) below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration in any form (including increased rent or other similar payments or commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (cincluding a guaranty) and or otherwise assume or incur or agree to assume or incur any liability, to obtain any consent of any Person (d)other than any Governmental Authority) under any Contract.
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees to (i) use its reasonable best efforts to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) Transactions, as soon as practicable and any required notification under any other Antitrust Laws as promptly as reasonably practicable following advisable after the date of this Agreement, (and but in any no event with respect to filings made pursuant to the HSR Act within later than ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days after the date of this Agreement)hereof, and (ii) to utilize reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and Act. Parent shall pay all filing fees applicable for filings made pursuant to promptly take any and all steps necessary this Section. Further, each party hereto shall use its reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents consents under the HSR Act or any other such Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental AuthorityAuthority pursuant thereto, in each case with competent jurisdiction jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Outside Date.
(c) . Without limiting the foregoing, the Purchaser Parent’s and the Seller shall, and shall cause their respective Affiliates to use, Merger Sub’s reasonable best efforts shall include (i) committing to cooperate or effecting, by consent decree, hold separate order, trust, or otherwise, the divestiture, sale, license, transfer, assignment or other disposition of assets or businesses of the Company or its Subsidiaries, (ii) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of the Company or its Subsidiaries, and (iii) creating or consenting to create any relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements of the Company or its Subsidiaries (and, in good faith with all applicable Governmental Authorities each case, to enter, or offer to enter, into agreements and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior stipulate to the Termination Dateentry of an order or decree or file appropriate applications with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to any of the Company or its businesses or assets, by consenting to such action by the Company) (each a “Divestiture Action”); provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (Parent and its Affiliates) Merger Sub shall not be required to take a Divestiture Action or any other action pursuant to this Section 5.03(c) (ix) proffer or consent to a Judgment or consent order providing for the sale if such Divestiture Action or other dispositionaction would reasonably be expected to have, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be a material adverse impact on, or as measured in comparison to, the expected benefits of the Transactions to be material Parent and Merger Sub and (y) unless such Divestiture Action or other action is necessary to consummate the Transactions prior to the BusinessOutside Date. In no event shall Parent, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 Company or any other provision of this Agreement, neither the Seller nor any of its their respective Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sellproffer, divest, dispose of consent to or enter into agree to or effect any undertaking or other arrangements, or take action relating to any other Antitrust Remedial Action objections asserted by any Governmental Authority with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or the Transactions under any other provision of this Agreement, and Antitrust Laws unless such action is conditioned upon the “reasonable best efforts” consummation of the Seller shall not include taking any Merger. Neither the Company nor its Subsidiaries shall, without the express written consent of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to Parent, take or agree to take any action relating to any objections asserted by any Governmental Authority with respect to the Transactions under any Antitrust Laws with respect to its business or operations unless operations, but, if requested by Parent in writing, the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategyCompany shall, and (ii) coordinate the overall development shall cause its Subsidiaries to, subject to this Section 5.03(c), take any such actions to obtain any of the positions to be taken and the regulatory actions to be requested governmental approvals contemplated in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other partythis Section 5.03(c).
(ed) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents4(c) documents” and “Plans and Reports4(d) documents” as those these terms are used in the rules and regulations under the HSR Act. To the extent reasonably practicable, all telephone calls and meetings with a Governmental Authority regarding the Transactions shall include representatives of Parent and the Company, and (iv) each party hereto must inform the other of any communications with a Governmental Authority relating to any Antitrust Laws. Except as otherwise restricted by this Section 5.03(d), Parent and the Company or their outside counsel shall have the right to review in advance all written materials submitted or communications made to any Governmental Authority in connection with the Transactions, in each case, to the extent permitted by the FTC, the DOJ, FERC such materials or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity communications are related to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject any Antitrust Laws; provided that materials required to the terms of be provided pursuant to this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall 5.03(d) may be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), redacted (A) to remove references concerning the “General Information Notice” shall identify and be executed by valuation of the Company as the responsible party and Company, (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions as necessary to comply with ISRA contractual arrangements, (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assuranceC) as necessary to consummate the Transactions (and provide Purchaser comply with a reasonable opportunity to review and comment in advance on such filings and submissions) applicable Law, and (yD) have as necessary to address reasonable privilege or confidentiality concerns; provided further, that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”. Notwithstanding the right foregoing, Parent shall, following consultation with the Company and after giving due consideration to manage its views and acting reasonably and in good faith, direct and control any Remedial Action with respect all aspects of each party hereto’s efforts to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to gain regulatory clearance either before any Governmental Authority or in any action brought to enjoin the Transactions pursuant to any Antitrust Laws.
(e) Neither Parent nor Merger Sub shall, nor shall they permit their Subsidiaries or controlled Affiliates to, acquire or agree to acquire any rights, interests, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to materially increase the risk of not obtaining any applicable clearance, consent, approval or waiver under the HSR Act or other third party in connection Antitrust Laws with respect to the Offer or the Merger or the other Transactions or otherwise not complying with the performance requirements of their respective obligations under this Section 7.01Section.
Appears in 1 contract
Sources: Merger Agreement (MyoKardia, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller parties shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations, domestic and foreign to cause consummate the conditions to the Closing to be satisfied Transactions as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing as promptly and fully as practicable with any Governmental Authority or other third party all documentation and to effect all necessary filingsFilings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining and maintaining all Consents (including with respect required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, including merger clearance under the EC Merger Regulation and the merger regulations, to the extent applicable, of the individual countries in the case of each of clauses (i) through (iii)Europe, Japan and any other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, country in which are dealt with in Section 7.01(b), (c) and (d)such clearance is required.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Purchaser and each Seller Party shall, (i) if required by applicable Law or regulation, make an appropriate filing Filing of a Notification and Report Form pursuant to the HSR Act and such Filings as are required under the EC Merger Regulation and in individual countries in Europe and in Japan with respect to the Transactions (which shall request including the early termination acquisition of Purchaser Qualifying Securities by Seller or any waiting period applicable to the Transactions under the HSR ActSeller Subsidiary) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event (x) with respect to filings made Filings pursuant to the HSR Act Act, within ten Business Days of the Determination Date and (10y) calendar dayswith respect to Filings under the EC Merger Regulation and in individual countries in Europe and in Japan, provided, that within fifteen Business Days of the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)Determination Date, and (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, subject to Sections 7.01(c) and 7.01(d), its reasonable best efforts to cooperate in good faith with take all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable other actions required necessary, proper or advisable to complete lawfully cause the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer expiration or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business termination of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any as soon as practicable and to obtain all such other Antitrust Laws or enter into a timing agreement with any Required Governmental Authority, without the prior written consent of the other partyConsents.
(ec) Each of Purchaser, Seller Parties and the parties hereto shall Company shall, in connection with the efforts referenced in Sections 7.01(a) and (b) to obtain all Required Governmental Consents for the Transactions, use its reasonable best efforts to, subject to applicable Law: (i) cooperate in all respects with each of the other parties hereto in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private person, allow third party (including sharing copies of any such filings or submissions reasonably in advance of the other party to review such filing, submission, filing or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, submission thereof); (ii) keep each of the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by any such party from, or or, subject to compliance with the requirement to offer the other parties prior review of such communications, given by such party toto any Governmental Authority, including the Federal Trade Commission (the “FTC”), and the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personthird party, in each case regarding any of the Transactions, ; and (iii) subject permit each of the other parties hereto to applicable Laws relating review in advance any communication intended to be given by it to, and consult with the exchange other parties in advance of informationany meeting or conference with, the FTC, the DOJ or any such other Governmental Authority or, in connection with any proceeding by a third party, with any other Person, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, requested by Purchaser or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR ActSeller Parties, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive in such meetings and conferences; provided, however, that without the prior consent of Purchaser, with respect to the obtaining of Consents sought or Filings made in connection with Purchaser's acquisition of Seller Company Securities or the registration under the 1933 Act of Purchaser Qualifying Securities, or Seller Parties, with respect to any acquisition by Seller Parties of Purchaser Qualifying Securities, the Company shall not, and none of Purchaser or any Seller Party, as applicable, shall, contact or communicate with (other than communications which are not material with respect to the obtaining of any such consent) any Governmental Authority with respect to the Transactions unless it has first provided the other parties with notice thereof and the right to review and reasonably comment upon any proposed communication or the opportunity to attend (including by teleconference) any discussions with such Governmental Authority, as applicable. Each of Purchaser, Seller Parties and the Company hereby agrees to reasonably cooperate with the others in the making of any Filings under this Section 7.01(c), including the provision of any additional or supplementary information required or requested by the applicable Governmental Authority, including the European Commission, in connection with the obtaining of such Required Governmental Consent or the causing of the expiration or termination of any waiting periods under the HSR Act. Each of the Company and Seller Parties will be given the opportunity to review such portions of the submissions to the European Commission which (A) reference or are otherwise relevant to Seller Parties or the Company, as applicable, and its consummation of the Transactions and (B) are not of a confidential or proprietary nature to Purchaser, prior to the filing or submission of the same; it being understood that if Seller Parties or the Company, as applicable, intends to comment, it will do so promptly. Notwithstanding anything contained in Section 7.04, this Agreement and the contents hereof may be provided to the European Commission (and, if required by Law, made publicly available).
(fd) In furtherance and not in limitation of the covenants of the parties contained in Sections 7.01(a), (b) and (c), if any objections are asserted with respect to the Transactions under the HSR Act, or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other Governmental Authority or any third party challenging any of the Transactions, or which would otherwise prohibit or materially impair or materially delay the consummation of the Transactions, each of Purchaser, Seller Parties and the Company shall use its reasonable best efforts to resolve any such objections or suits so as to permit consummation of the Transactions. In furtherance of the obligations set forth foregoing, Purchaser agrees to take any and all action necessary to resolve such objections or suits, including agreeing to sell, hold separate or otherwise dispose of or conduct its business in Section 7.01(aa manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such objections or suits; provided, however, that if Liberty is Purchaser, nothing in this Agreement shall require Purchaser or any of Purchaser's Subsidiaries or Affiliates to take any action requiring, or enter into any settlement, undertaking, consent decree, stipulation or other agreement with a Governmental Authority that requires, Purchaser to (i) and hold separate (including by establishing a trust or otherwise) or sell or otherwise subject dispose of any assets, businesses or interests of Purchaser or any of its Subsidiaries having a fair market value in excess of 5% of Purchaser's Market Capitalization or (ii) if Liberty is Purchaser, (x) hold separate (including by establishing a trust or otherwise) or sell or otherwise dispose of any shares (or any interests in any shares) of InterActiveCorp (f/k/a USA Interactive) it owns, holds or has the right to acquire or (y) cause InterActiveCorp to take any action with respect to its interests in, or the operation of, its electronic retailing business.
(e) Subject to the terms obligations under and limitations of Section 7.01(d), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority or third party challenging the Transactions, each of Purchaser, Seller Parties and the Company shall cooperate in all respects with each other and use its respective reasonable best efforts to defend, contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions. For purposes of this Section 7.01, the term “Transactions” will be deemed to include the purchase of the Defaulting Purchaser's Company Securities by Seller Parties as contemplated by Section 10.02(b) or (d), and as a result, if Seller Parties so elect, the parties will, concurrently with or promptly following the corresponding Filing made under this Section 7.01 and in addition to the Required Governmental Consents being sought and Filings made with respect to Purchaser's acquisition of Seller Company Securities, also seek to obtain all Governmental Consents and make all Filings required to be made to consummate Seller Parties' acquisition of the Defaulting Purchaser's Company Securities pursuant to Section 10.02(b) or (d).
(f) The Company and Seller Parties acknowledge and agree that Purchaser will lead the process relating to obtaining the expiration or termination of the waiting period under the HSR Act and the other Required Governmental Consents, and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser will, following consultation with Seller Parties and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as to material regulatory matters, have primary responsibility regarding the responsible party approach to obtaining such expiration or termination and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserRequired Governmental Consents.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties, (including iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company, any of its Subsidiaries, or, subject to Section 6.12 and related provisions, Parent or Merger Sub be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any Permitsapplicable waiting periods under the HSR Act, including Environmental Permits(ii) from use their reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Authority Entity as promptly as practicable any additional information or third party documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments transactions contemplated hereby, including taking all such further action as may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case Antitrust Division of each the United States Department of clauses Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law (i) through (iii), other than with respect to filingsany Action by any shareholder related to this Agreement, notices, petitions, statements, registrations, submissions of information, applications and the Merger or the other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (ctransactions contemplated by this Agreement) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date), including (x) proposing, negotiating, committing to the Termination Date.
(c) Without limiting the foregoingand effecting, by consent decree, hold separate order or otherwise, the Purchaser sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Seller shallClosing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or delaying the Closing; provided that neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement (including, for the avoidance of doubt, Section 6.1(a) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their respective Subsidiaries and Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliatesnot to) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(ec) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 6.7, submission or substantive written communication with a and, subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other material communications received by the Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or substantive written communicationproposals from third parties with respect thereto, (iiy) keep the other parties hereto informed in all material respects as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and on a reasonably timely basis of any material communication received by such party fromits operations, or given by such party to, the Antitrust Division provided that Parent shall contemporaneously provide summaries to Company’s counsel of the Department information redacted pursuant to this subclause (y). Each of Justice (the “DOJ”)Company, the Federal Trade Commission (the “FTC”)Parent and Merger Sub agrees not to participate in any meeting or discussion, FERC either in person or by telephone, with any other Governmental Authority and of any material communication received or given Entity in connection with the transactions contemplated hereby unless it consults with the other party in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.7, if any administrative or judicial action or proceeding, including any proceeding by a private Personparty, in is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each case regarding any of the TransactionsCompany, (iii) subject to applicable Laws relating to the exchange of information, Parent and to the extent reasonably practicable, consult Merger Sub shall cooperate in all respects with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant contest and resist any such action or proceeding and to Section 203 have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the FPA in order to consummate Merger and the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of other transactions contemplated by this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with Notwithstanding the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date foregoing or any other provision of this Agreement, (iii) subject nothing in this Section 6.7 shall limit a party’s right to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of terminate this Agreement and the consummation of the Transactions)pursuant to Section 8.1(b)(i) or Section 8.1(b)(ii) so long as such party has, including causing the Company prior to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchasersuch termination, the Company or complied with its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.016.7.
Appears in 1 contract
Sources: Merger Agreement (Saks Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller shall cause its Subsidiaries to, use their respective its reasonable best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or to cause to be taken, all actions, and doto do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated hereby, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties, (including with respect iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any Permits, including Environmental Permits) from any Governmental Authority or third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions Merger and (iii) executing and delivering any additional instruments the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case Antitrust Division of each the United States Department of clauses (i) through (iii)Justice, state or foreign antitrust enforcement authorities or competition authorities, other than Governmental Entities in connection with respect to filingsthe Specified Regulatory Clearances, notices, petitions, statements, registrations, submissions or other state or federal regulatory authorities of information, applications and any other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), nation or other jurisdiction or any other person may assert under Regulatory Law (cas hereinafter defined) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date (as hereinafter defined)), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Termination Datecompletion of the transactions contemplated by this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity with respect thereto.
(c) Without limiting the foregoing, the Purchaser and the Seller shallSubject to Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, each of the Company and Parent shall cause cooperate in all respects with each other and shall use their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities contest and undertake as promptly as reasonably practicable commercially reasonable actions required resist any such action or proceeding and to complete lawfully the Transactions prior to the Termination Datehave vacated, providedlifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that notwithstanding anything to the contrary is in this Agreementeffect and that prohibits, the Purchaser (and its Affiliates) shall not be required to (i) proffer prevents or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business restricts consummation of the Transferred Entities (including the termination of any existing relationships Merger or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in transactions contemplated hereby. Notwithstanding the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) nothing in this Section 5.6 shall be required limit a party’s right to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions5.6.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date For purposes of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Egl Inc)
Efforts. (a) Subject to the terms and conditions of this Agreementherein provided, the Purchaser and Sellers shall, and Sellers shall cause the Seller shall Company and its Subsidiaries to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws to cause the conditions to the Closing to be satisfied consummate and make effective as promptly as practicable and to consummate and make effective, in after the most expeditious manner practicable, date hereof the Transactionstransactions contemplated by this Agreement, including (i) preparing and filing as promptly and fully all documentation to effect as practicable all necessary filingsapplications, notices, petitions, statementsfilings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, submissions of informationapprovals, applications permits, rulings, authorizations and other documents clearances necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (including with respect to any Permitscollectively, including Environmental Permits), the “Governmental Approvals”) and (ii) obtaining as promptly as practicable taking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments steps as may be necessary to consummate obtain all such Governmental Approvals. In furtherance and not in limitation of the Transactionsforegoing, in Purchaser shall, and Sellers shall cause the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b)Company to, (cA) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of file a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby no later than August 5, 2015, (which shall request the early termination of any waiting period applicable B) make all other required filings pursuant to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i)transactions contemplated hereby no later than August 5, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy2015, and (iiC) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or not extend any applicable waiting period under the HSR Act or any other Antitrust Laws or Law, nor enter into a timing any agreement with the United States Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental AuthorityEntity not to consummate the transactions contemplated by this Agreement, without except with the prior written consent of the other partyParty (which shall not be unreasonably withheld, conditioned or delayed). Each Party shall supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Antitrust Law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Antitrust Law as soon as possible.
(eb) Each of Purchaser and Sellers shall, and Sellers shall cause the parties hereto shall Company to, in connection with the actions referenced in Section 5.3(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filingcommunication, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, party; (ii) keep the other parties hereto Parties and/or their counsel informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of FTC or the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC DOJ or any other U.S. or other Governmental Authority Entity and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, transactions contemplated hereby; (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with each other in advance of any meeting or conference with the other parties hereto with respect to information relating to FTC, the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person DOJ or any other Governmental Authority Entity or, in connection with the Transactionsany proceeding by a private party, with any other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Actperson, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority Entity or other Personperson, give the other parties hereto prompt notice of, and party and/or its counsel the reasonable opportunity to attend and participate in, substantive in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of Sellers and Purchaser. Purchaser and Sellers shall, and Sellers shall cause the Company to, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 5.3(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or the Company, as the case may be) or its legal counsel.
(fc) In furtherance and not in limitation of the obligations set forth covenants of the Parties contained in Section 7.01(aSections 5.3(a) and otherwise subject to the terms of this Section 7.015.3(b), the Seller and the Purchaser shall use their respective its reasonable best efforts to obtain approval from FERC pursuant to Section 203 of avoid the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution entry of, or consenting toto resist or resolve, FPA Section 203-related applications any decree, judgment, injunction or submissions with FERCother order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Outside Date, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, by (i) the parties acknowledge that the execution of agreeing to any limitation on its rights under this Agreement and the consummation or any of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)agreements contemplated hereby, (ii) litigating through a decision by the Seller shall complete and file applicable court on a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreementmotion for preliminary injunction any actual suit brought or pursued by any Governmental Entity or any other Person, or (iii) subject proposing, negotiating, offering to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), commit or effecting (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all any sale, divestiture, license, hold separate or other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result disposition of this Agreement and the consummation assets or business of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its any of their respective Subsidiaries or Affiliates, or (B) any restrictions on the control or conduct of any business of Purchaser or the Company or their respective Subsidiaries or Affiliates; provided, that Purchaser shall not be obligated to take or agree to take the actions set forth in clauses (i) through (iii) above if such actions would result in, or would be reasonably likely to result in, either individually or in the aggregate, a material adverse effect on the Business as conducted by Purchaser, the Company and their respective Affiliates after giving effect to the extent permitted under ISRAtransactions contemplated by this Agreement. Purchaser shall not require the Company to, will provide a self guarantee in lieu of such and the Company shall not be required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control to, take any Remedial Action action with respect to satisfying any Non-Legacy Environmental Liability required to comply with ISRA, Antitrust Laws that would bind the Company in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserevent the Closing does not occur.
(hd) Notwithstanding anything to Whether or not the contrary in this AgreementSale is consummated, the Seller Purchaser shall be responsible for all filing fees and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) payments to any Governmental Authority Entity in order to obtain any consents, approvals or other third party in connection with the performance of their respective obligations under waivers pursuant to this Section 7.015.3.
Appears in 1 contract
Efforts. (a) Subject Each of the parties agrees to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause consummate the conditions to the Closing to be satisfied transactions contemplated by this Agreement as promptly as practicable, including (x) preparing and filing as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, noticesconsents, petitionswaivers, statementsclearances, registrationsapprovals, submissions of informationauthorizations, applications and other documents (including with respect to any Permits, including Environmental Permits)permits or orders from all Governmental Entities, (iiy) obtaining seeking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper necessary or advisable consents of third parties to consummate the Transactions transactions contemplated hereby and (iiiz) executing using reasonable best efforts to cause the satisfaction, but not waiver, of the conditions to closing of the other party or parties set forth in Article VIII. In furtherance and delivering any additional instruments necessary to consummate not in limitation of the Transactionsforegoing, in the case of each of clauses party hereto agrees (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating make or cause to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated by this Agreement as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect within five (5) Business Days) after the date hereof and to filings made pursuant request and use reasonable best efforts to obtain early termination of the waiting period under the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and Act; (ii) to make, or cause to be made, a filing of the short form notification referred to in subsection 123(1) of the Competition Act as promptly as practicable (and in any event within five (5) Business Days) after the date hereof; and (iii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act or the Competition Act.
(b) Further, and without limiting the generality of the rest of this Section 5.3, each of the parties shall cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry and shall promptly (i) furnish to the other such necessary information and reasonable assistance as the other parties may request in connection with the foregoing, (ii) inform the other of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement, and (iii) provide counsel for the other parties with copies of all filings made by such party, and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Subsidiaries to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the Transferred Companies, (y) as necessary to comply with contractual arrangements and (z) to remove information concerning Affiliates of Purchaser. Each party hereto shall, subject to applicable Law, permit counsel for the other Antitrust Laws parties to review in advance, and consider in good faith the views of the other parties in connection with, any proposed written communication to promptly any Governmental Entity in connection with the transactions contemplated by this Agreement. The parties agree not to participate, or to permit their Subsidiaries to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other parties the opportunity to attend and participate.
(c) Further, and without limiting the generality of the rest of this Section 5.3, Purchaser shall take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws antitrust, competition, or trade regulation or other Law that may be asserted by any Governmental Entity or private party with respect to this Agreement so as to make effective as promptly as practicable the transactions contemplated by this Agreement and to avoid any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing beyond the Outside Date. The steps involved in the preceding sentence shall include, without limitation, (i) defending through litigation on the merits, including appeals, any claim asserted in any court or other proceeding by any party; (ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Purchaser (including its Subsidiaries and Affiliates) or the Transferred Companies, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture or disposition of such assets or businesses; (iii) agreeing to any limitation on the conduct of Purchaser (including its Subsidiaries and Affiliates) or the Transferred Companies; or (iv) agreeing to take any other action as may be required by a Governmental Entity in order (A) to obtain all necessary consents, approvals and authorizations as soon as reasonably possible, and in any foreign event before the Outside Date, (B) to avoid the entry of, or U.S. federalto have vacated, state lifted, dissolved, reversed or local Governmental Authorityoverturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect in any Action and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, or (C) to effect the expiration or termination of any waiting period, which would otherwise have the effect of preventing or delaying the Closing beyond the Outside Date. At the request of Purchaser, Sellers shall agree to take, or cause the Transferred Companies to take, in Seller’s sole discretion, any action with respect to the Transferred Companies or any of their Subsidiaries in the two preceding sentences, provided that any such action is conditioned upon (and shall not be completed prior to) the consummation of the transactions contemplated by this Agreement. Each of Parent and Purchaser shall not, and shall cause each case with competent jurisdiction so as of its Subsidiaries and Affiliates not to, take any action which is intended to enable or which would reasonably be expected to adversely affect the ability of any of the parties hereto to consummate obtain (or cause delay in obtaining) any necessary approvals of any Governmental Entity required for the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in transactions contemplated by this Agreement, the Purchaser (to perform its covenants and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of agreements under this Agreement, neither or to consummate the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of transactions contemplated by this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing Purchaser shall use its reasonable best efforts to obtain the proceeds of the Financing on the terms and conditions described in this Agreement shall require the Commitment Letters (or, at Purchaser’s option, on other terms, not imposing any party additional conditions precedent to take or agree the initial funding of the Debt Financing and not otherwise reasonably likely to take cause any action material delay in the initial funding of the Debt Financing), including using reasonable best efforts to (i) negotiate definitive agreements with respect to its business the Debt Financing consistent with the terms and conditions contained in the Debt Commitment Letter, (ii) satisfy on a timely basis (or operations unless obtain the effectiveness of waiver of) all conditions applicable to Purchaser in such agreement or action is conditioned upon the Closing. The Purchaser shall definitive agreements and (iiii) control the strategy for obtaining any Consents from any Governmental Authority cooperate with Parent in connection with the Transactions; provided that preparation and delivery of the Required Information by July 16, 2007. Purchaser shall consult in good faith use its reasonable best efforts to comply with the Seller regarding such strategyits obligations, and enforce its rights, under the Commitment Letters. In the event that (iix) coordinate the overall development all or any portion of the positions Debt Financing structured as high yield financing has not been consummated on or before the date on which Closing is required to occur in accordance with Section 2.3, (y) all conditions to the obligations of the parties to close contained in Sections 8.1 and 8.2 have been satisfied or waived (other than those conditions that by their nature are to be taken satisfied at Closing) and (z) the regulatory actions bridge facilities contemplated by the Debt Commitment Letter are available on the terms and conditions described in the Debt Commitment Letter, Purchaser shall draw down on such bridge facilities to be requested in replace the high yield financing or portion thereof that has not been consummated no later than the time Purchaser is obligated to close pursuant to the terms hereof. Purchaser shall give Parent prompt notice of any filing or submission with a Governmental Authority in connection with breach by any party to the Transactions and in connection with any investigation or other inquiry or litigation by or before, Commitment Letters of which Purchaser has become aware or any negotiations with, a Governmental Authority relating to purported termination of the Transactions and of all other regulatory matters incidental theretoCommitment Letters. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authoritynot, without the prior written consent of Parent, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the other party.
Commitment Letters if such amendment, modification, waiver or remedy adds new (eor adversely modifies any existing) Each conditions to the consummation of the parties hereto shall Financing or reduces the amount thereof, or (y) terminate or permit termination of any of the Commitment Letters. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letters, regardless of the reason therefor, Purchaser will (i) use its reasonable best efforts to obtain alternative debt financing (iin an amount sufficient, when taken together with the proceeds from the Cash Equity, to pay the Purchase Price including any adjustments thereto) cooperate on terms no less favorable than those in the Debt Commitment Letters, including from other sources, and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions precedent to the Debt Financing set forth in the Debt Commitment Letters, and (ii) promptly notify Parent of such unavailability and the reason therefor. In addition, notwithstanding anything in this Agreement to the contrary, one or more Commitment Letters may be superseded at the option of Purchaser after the date of this Agreement but prior to the Closing Date by instruments (the “New Financing Commitments”) that replace existing Commitment Letters, provided that the terms of the New Financing Commitments shall not (A) expand upon the conditions to the Closing Date drawdown to the Debt Financing as set forth in the Commitment Letters in any material respect, (B) reduce the amount of the Debt Financing, or (C) reasonably be expected to delay the Closing. In such event, the term “Commitment Letters” as used herein shall be deemed to include the Commitment Letters that are not so superseded at the time in question and the New Financing Commitments to the extent then in effect. Notwithstanding the foregoing, compliance by Purchaser with this Section 5.3(d) shall not relieve Purchaser of its obligation to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(e) Parent shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Transferred Companies and their Subsidiaries to, cause the respective officers, employees, and advisors, including legal and accounting, of Parent and the Transferred Companies and their Subsidiaries to, provide to Purchaser all respects cooperation, on a timely basis, reasonably requested by Purchaser that is reasonably necessary and customary in connection with each the Financing ( provided that such requested cooperation shall not unreasonably interfere with the operation of the Business or Parent’s or its Subsidiaries’ other businesses), including:
(1) causing senior management and other appropriate employees of the Business (A) upon reasonable advance notice by Purchaser and on a reasonable number of occasions, to be available on a customary basis for meetings, including management and other presentations and “road show” appearances, rating agency presentations, participation in due diligence sessions, and the preparation of disclosure documents in connection with any filing, submission or substantive written communication with a Governmental Authority in connection such financing and (B) to provide reasonable and customary management and legal representations to auditors and reasonable and timely assistance with the Transactions preparation of business projections and similar materials, provided that any private placement memoranda in connection with relation to high-yield debt securities need not be issued by any investigation Transferred Company or other inquiry by any of its Subsidiaries, provided further that any such memoranda or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, prospectuses shall contain disclosure and consider in good faith the views of such other party financial statements with respect to such filingthe Transferred Companies and their Subsidiaries;
(2) providing reasonable assistance in the timely preparation of offering memoranda, submissionprospectuses, rating agency, lender and investor presentations, syndication or substantive written communicationinformation memoranda, (ii) keep the marketing materials and other parties hereto informed similar documents, if applicable, including but not limited to causing management and other personnel to participate in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party torelated drafting sessions; provided that Parent, the Antitrust Division Transferred Companies, their Subsidiaries and their respective officers, employees and advisers shall only be required to provide such assistance with respect to preparation of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC a prospectus or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and offering memorandum to the extent reasonably practicable, consult such prospectus or offering memorandum is prepared in accordance with customary practices for an offering of debt securities made pursuant to Rule 144A under the Securities Act and consistent with the other parties hereto with respect requirements of the Securities Act for such an offering pursuant to information relating to the other parties hereto and their respective SubsidiariesRule 144A, as the customarily applied to such an offering (but in no case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, shall Parent be required to provide financial statements other than “Transaction-Related Documents” those provided under Section 3.6(a) of this Agreement and “Plans and Reports” as those terms are used in the rules and regulations required to be provided under the HSR Act, and clause (iv3) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.015.3(e));
(3) timely furnishing such financial and other information regarding the Business as shall exist or become available (or if not existing, the Seller and the Purchaser shall use their respective using its reasonable best efforts to obtain approval from FERC prepare such financial or other information) as may be reasonably requested by Purchaser, and in any event including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent registered public accountants of Parent as provided in Statement on Audited Standards No. 100) and all appropriate pro forma financial statements, prepared in accordance with GAAP, and all other data and information (including management’s discussion and analysis of financial condition and results of operations, and, with respect to any audited financial statements, the auditors’ report thereon), of the type required by Regulation S-X and Regulation S-K under the Securities Act (excluding information required by Rule 3-10 of Regulation S-X other than basic narrative information) or of the type and form that would customarily be provided in a private placement of debt securities pursuant to Section 203 Rule 144A under the Securities Act, to consummate any offering of securities contemplated by the Debt Commitment Letter (or any alternative financing) at the time during the fiscal year of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in Business that such efforts, including the execution ofoffering will be made, or consenting tothat would be necessary to receive customary “comfort” (including without limitation “negative assurance” comfort) from independent registered public accountants in connection therewith (such information, FPA Section 203-related applications together with any replacements or submissions restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purpose and, in the case of annual financial statements, the auditors’ report thereon, and customary auditor comfort letters with FERCrespect to all such information, including any inquiries from staff, which applications or submissions shall be made as soon as practicablethe “Required Information”), but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and shall Parent or its Affiliates shall make all necessary post-Closing filings and submissions pursuant Subsidiaries be required to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations furnish audited or unaudited financial statements with respect to any Non-Legacy Environmental Liabilities under Section 10.02(bperiod prior to the fiscal year ended January 29, 2006 (other than unaudited selected financial data for 2002, 2003 and 2004);
(4) obtaining consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters and legal opinions, as reasonably requested by Purchaser;
(5) taking all actions reasonably necessary to (A) permit prospective financing providers involved in the “General Information Notice” shall identify Debt Financing to evaluate the Business’s current assets, cash management and be executed by accounting systems, policies and procedures relating thereto for the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.purp
Appears in 1 contract
Efforts. (ai) Subject Upon and subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller shall parties agrees to use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under Applicable Law to consummate and make effective, and satisfy all conditions to, in the most expeditious manner practicable, the Transactions, including (iA) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Required Regulatory Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (iiB) the obtaining of all Consents necessary consents, approvals or waivers from third parties, (including with respect to C) the defending of any Permitslawsuits or other legal proceedings, including Environmental Permits) from any Governmental Authority whether judicial or third party necessaryadministrative, proper challenging this Agreement or advisable to consummate the consummation of the Transactions and (iiiD) executing the execution and delivering delivery of any additional instruments necessary to consummate the Transactions; provided, however, that in no event shall the case Company or any of each its subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Transactions under any contract or agreement.
(bii) Each In furtherance and not in limitation of the parties hereto agrees other provisions of this Section 6.1, the Company and Parent each agree to (i) make or cause to be made an appropriate filing of a Notification notification and Report Form report form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementpracticable, (and in any event with respect to filings made pursuant to the HSR Act event, within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following days after the date of this Agreement), Agreement and (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act, but only in the context of an informal investigation, if applicable, and in response to a second request under the HSR Act rules. Furthermore, each of the Company and such Parent agrees to make promptly any other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws filing that may be required with respect to the Transactions under any other Competition Law or by any foreign or U.S. federal, state or local other Governmental Authority, including in each case connection with competent jurisdiction so as all Required Regulatory Approvals, and to enable the parties hereto to consummate the Transactions supply as promptly as reasonably practicable any additional information and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, documentary material that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not may be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations requested pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closingfilings. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any All filing or submission with a Governmental Authority in connection with the Transactions and fees required in connection with any investigation filings with any Governmental Authority under any Competition Law or other law that may be asserted by any Governmental Authority shall be borne by Parent.
(iii) Each party shall keep the other party apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority, comply with any such inquiry or litigation by request as promptly as practicable, promptly notify the other party of any substantive oral or before, or written communication it receives from any negotiations with, a Governmental Authority relating to the Transactions matters that are the subject of this Agreement, permit the other party to review in advance any substantive communication proposed to be made by such Party to any Governmental Authority and provide the other party with copies of all correspondence, filings or other regulatory matters incidental communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege or confidentiality concerns; provided that each party shall and shall cause each of its affiliates to use its respective reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in such a manner that does not result in a loss of any such protection or privilege. Each of the Company and Parent shall furnish to the other party such information and assistance as such party reasonably may request in connection with the preparation of any submissions to, or proceedings by, any Governmental Authority. Neither the Purchaser nor the Seller Party shall commit agree to participate in any meeting, or agree engage in any substantive conversation, with any Governmental Authority in respect of any such filings, investigation or other inquiry unless it consults with the other party in advance and, unless prohibited by such Governmental Authority, gives the other party the opportunity to stayattend and participate at such meeting or conversation. Neither party shall (without the consent of the other party) extend, toll directly or extend indirectly, any applicable waiting period under the HSR Act or any other Antitrust Laws Competition Law or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication contract with a Governmental Authority in connection with the Transactions and in connection with any investigation to delay or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order not to consummate the Transactions. The Purchaser Subject to the Confidentiality Agreement and its Affiliates shall to Section 5.3, the parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably cooperate and consult request in connection with the Seller foregoing and its Affiliates in such efforts, including seeking early termination of any applicable waiting periods under the execution of, HSR Act or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesother Competition Law.
(giv) In connection Without limiting the generality of the obligations of parties pursuant to this Section 6.1(a), Parent agrees to take, or cause to be taken, any and all steps that it deems reasonable and to make, or cause to be made, any and all undertakings necessary to resolve, avoid or eliminate each and every impediment under any Competition Law or any other Law that may be asserted by any Governmental Authority with respect to the Transactions so as to enable the Closing to occur as promptly as practicable (and in any event, no later than the Outside Offer Date) , provided, however, that such steps shall not include (A) proposing, negotiating, committing to, and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture, licensing or disposition of any assets, properties or businesses of Parent, the Company Sites located in Pedricktownand their respective subsidiaries, New Jersey, or (iB) the parties acknowledge accepting any operational restrictions or otherwise taking or committing to take actions that the execution limit Parent’s and/or its subsidiaries’ freedom of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate action with respect to, compliance with the New Jersey Industrial Site Recovery Actor its ability to retain, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days any of the date assets, properties, licenses, rights, product lines, operations or businesses of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the PurchaserParent, the Company and/or their respective subsidiaries, in each case, as may be required in order to avoid the entry of, or its Affiliatesto effect the lifting or dissolution of, any Restraint, which would otherwise have the effect of preventing or delaying the Closing, as applicable. In addition, Parent shall not be required to defend through litigation on the merits any claim asserted before any Governmental Authority with applicable jurisdiction by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing from occurring on or prior to the extent permitted under ISRA, will provide a self guarantee in lieu of Outside Offer Date and Parent’s failure to take such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates actions shall have no not create an obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01a termination fee.
Appears in 1 contract
Efforts. From the date hereof until the earlier of the Preferred Stock Closing and the date that this Agreement is terminated pursuant to Section 9.1, the Investor and the Company shall (a) Subject to promptly file any and all Notification and Report Forms required under the terms and conditions ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of this Agreement1976, as amended (the Purchaser and the Seller shall use their respective reasonable best efforts (unless“HSR Act”), with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actionsthe transactions contemplated hereby, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable use commercially reasonable efforts to cause the conditions expiration or termination of any applicable waiting periods under the HSR Act; (b) use commercially reasonable efforts to the Closing cooperate with each other in (i) determining whether any filings are required to be satisfied made with, or consents, permits, authorizations, waivers, clearances, approvals, or expirations or terminations of waiting periods are required to be obtained from, any other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (ii) timely making all such filings and timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals, expirations or terminations; (c) use commercially reasonable efforts to supply to any Governmental Entity as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material or documents that may be requested pursuant to the HSR Act and any Law or by such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
Entity; (d) Nothing in this Agreement shall require promptly inform the other party of any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategysubstantive meeting, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforediscussion, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree communication with any Governmental Authority Entity (and supply to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive any written communication in advanceor other written correspondence or memoranda prepared for such purpose, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information) in respect of any filing, investigation or inquiry concerning the transactions contemplated hereby, and consult with the other party in advance of, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other PersonEntity, give the other parties hereto prompt notice of, and party the reasonable opportunity to attend and participate in, substantive meetings such meeting, discussion or communication; and conferences.
(fe) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective commercially reasonable best efforts to obtain approval from FERC pursuant take, or cause to Section 203 of the FPA in order be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate the Transactions. The Purchaser Closings and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortstransactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the execution ofUnited States Federal Trade Commission, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation Antitrust Division of the Transactions will requireUnited States Department of Justice, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations Law with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)the transactions contemplated hereby. Notwithstanding the foregoing, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of nothing in this Agreement and shall be deemed to require the consummation Investor or any of its Affiliates to enter into any agreement with any Governmental Entity, or to consent to any authorization, consent or approval of any Governmental Entity, requiring the Investor or any of its Affiliates to hold separate or divest, or to restrict the dominion or control of, any of its assets or businesses or any of the Transactions)stock, including causing assets or business of the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the PurchaserInvestor, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01Affiliates.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective reasonable its best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or cause to be taken, all actionsactions necessary, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsconsents, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)approvals or waivers from third parties, (ii) obtaining all Consents the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (including with respect iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company or any of their Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any Permitsthird party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Without limiting the foregoing, and notwithstanding anything contained in this Agreement to the contrary, Parent agrees to use its best efforts, and to take promptly any and all steps necessary, to avoid and, if necessary, eliminate, each and every impediment under any Regulatory Law (as hereinafter defined) that may be asserted by any Governmental Entity (through the head of the Governmental Entity or division thereof), so as to enable the Closing to occur as soon as possible (and in any event no later than the End Date (as hereinafter defined)), including, but not limited to, (i) providing information, (ii) proposing, negotiating, committing to and/or effecting, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of, or holding separate (through the establishment of a trust, proxy agreement, special security agreement, voting trust agreement or otherwise) such of Parent’s (or any of its affiliates’) assets, properties or businesses or of the Company’s (or any of its affiliates’) assets, properties or businesses to be acquired by Parent pursuant hereto, and the entrance into such other arrangements, in each case, as are necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or to effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transaction contemplated by this Agreement prior to the End Date; (iii) creating, terminating, or divesting relationships, ventures, contractual rights or obligations, including Environmental Permitsentering into, or offering or committing to enter into any supply agreements involving Parent’s (or any of its affiliates’) from or the Company’s products or restrictions on Parent’s (or any of its affiliates’) or the Company’s businesses requested by any Governmental Authority Entity, in each case, as are necessary to obtain an approval or third party waiver from, or to avoid an action or proceeding by any Governmental Entity or effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement prior to the End Date; (iv) defending through litigation on the merits any claim asserted in court by any person to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing from occurring prior to the End Date; and (v) taking, or causing to be taken, all other actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the President of the United States, CFIUS, the United States Department of Defense (including the Defense Security Services), the United States Department of Energy, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under Regulatory Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Regulatory Law that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby; provided, however, that nothing in this Section 5.6 shall require Parent to commit to or effect any action or agreement that is not conditioned upon the consummation of the transactions contemplated hereby. The Company shall not, without Parent’s prior written consent, agree to stay, toll or extend any applicable waiting period under any Regulatory Law, or discuss or commit to any of the actions or agreements in Section 5.6(b)(ii) or (iii) above, or discuss or commit to alter its businesses or commercial practices in any way, or otherwise take or commit to take any action that limits Parent’s freedom of action with respect to, or Parent’s ability to retain any of the businesses, product lines or assets of, the Company or otherwise receive the full benefits of this Agreement.
(c) In furtherance and not in limitation of the covenants contained in this Section 5.6, the Company and Parent shall (i) as promptly as reasonably practicable after the date of this Agreement, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, and (iii) executing subject to applicable legal limitations and delivering the instructions of any additional instruments necessary Governmental Entity, keep each other apprised of the status of matters relating to consummate the Transactionscompletion of the transactions contemplated thereby, in including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of each of clauses (i) through (iii)their respective Subsidiaries, other than from any third party and/or any Governmental Entity with respect to filingssuch transactions. Subject to the foregoing, notices, petitions, statements, registrations, submissions of information, applications Parent shall (a) control and other Consents lead all actions and strategy related to Regulatory Laws and litigation matters relating to Antitrust Regulatory Laws, which are dealt including all dealings with in Section 7.01(b)any Governmental Entity, (c) and (d).
(b) make all final determinations as to the appropriate course of action with respect to Regulatory Laws and Governmental Entities, and shall control and lead all communications related to Regulatory Laws and litigation matters relating to Regulatory Laws unless agreed otherwise as circumstances may dictate and as necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity or effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement prior to the End Date; provided that, notwithstanding anything to the contrary in this Agreement, the process for obtaining CFIUS approval shall be managed jointly by Parent and Company, Parent and Company shall jointly make all final determinations as to the appropriate course of action and all communications and filings (including, a withdrawal of submission) to and with CFIUS shall be jointly coordinated between Parent and Company. However, Parent shall make final determinations concerning agreements and undertakings to be entered into with CFIUS. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of the parties hereto Company and Parent agrees not to (i) make an appropriate filing of a Notification and Report Form pursuant participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the HSR Act with respect extent not prohibited by such Governmental Entity, gives the other party the opportunity to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) attend and any required notification under any other Antitrust Laws as participate. As promptly as reasonably practicable following the date of this Agreement, Parent and Company shall (a) arrange a meeting with CFIUS, (b) submit a draft joint voluntary notice to CFIUS and in any event (c) submit a final joint voluntary notice to CFIUS, each with respect regard to filings made this Agreement and other related information pursuant to Section 721 of the HSR Defense Production Act within ten (10) calendar daysof 1950, as amended. Each of Parent and the Company shall respond to any request for information from CFIUS in the timeframe set forth in the CFIUS regulations, 31 C.F.R. Part 800; provided, however, that either party, after consultation with the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date other party, may request in good faith an extension of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested time pursuant to 31 CFR § 800.403(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any extension that causes CFIUS to reject the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required voluntary notice filed by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate or modifies the Transactions as promptly as reasonably practicable and in any event prior to the Termination Datetime for CFIUS review or investigation.
(cd) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in Notwithstanding the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) nothing in this Section 5.6 shall be required limit a party’s right to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party5.6.
(e) Each For purposes of this Agreement, “Regulatory Law” means the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views S▇▇▇▇▇▇ Act of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to1890, the C▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)HSR Act, the Federal Trade Commission Act of 1914, the Defense Production Act of 1950, as amended, the International Traffic in Arms Regulations (the “FTCITAR”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any applicable requirements of the TransactionsNational Industrial Security Program, (iii) subject to applicable Laws relating to the exchange Export Administration Regulations, the embargoes and restrictions administered by the United States Office of informationForeign Assets Control and any Executive Orders of the President regarding embargoes and restrictions on trade with designated countries, entities and persons, and to the extent reasonably practicableall other federal, consult with the state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERCLaws, including any inquiries from staffantitrust, which applications competition or submissions shall be made as soon as practicabletrade regulation Laws, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant that are designed or intended to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) prohibit, restrict or regulate actions having the parties acknowledge that the execution purpose or effect of this Agreement and the consummation monopolization or restraint of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)trade or lessening competition through merger or acquisition, (ii) regulate the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days business or operations of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to Subsidiaries or (iii) protect the extent permitted under ISRA, will provide a self guarantee in lieu national security or the national economy of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchasernation.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties and the Seller use (and shall use cause their respective Affiliates to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner practicable, effective the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessarynecessary to consummate the Transactions, proper or advisable (iii) execute and deliver any additional instruments necessary to consummate the Transactions and (iiiiv) executing and delivering defend or contest in good faith any additional instruments necessary to consummate Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Regulatory Laws, which are dealt with in Section 7.01(b), (cSections 5.03(c) and (d)) below.
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each (and Parent shall cause its Subsidiaries to) use its reasonable best efforts to (i) take all actions necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all actions necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees to shall (and Parent shall cause its Affiliates to) (i) make an the appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions filings (which shall request the early termination of any waiting period applicable to the Transactions or draft filings, where applicable) or submissions under the HSR Act) and any required notification under any other Antitrust Regulatory Laws as promptly as reasonably practicable practicable, and in any event no later than within 20 Business Days following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), Agreement and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to such required Regulatory Laws. In furtherance of the HSR Act above, each of the parties hereto shall use its reasonable best efforts to cooperate with the other parties and such other Antitrust Laws use (and shall cause its respective Subsidiaries to promptly take any and all steps necessary use) reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents consents under any Antitrust Regulatory Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) practicable. Without limiting the foregoing, the Purchaser and the Seller shall, Parent shall use its (and shall cause their respective its Affiliates to use, use their respective) reasonable best efforts to cooperate secure the expiration or termination of any applicable waiting period and obtain any consent, clearance or approval required under any applicable Regulatory Laws. In furtherance of the foregoing, Parent shall use its reasonable best efforts to resolve any objections asserted with respect to the Transactions under any applicable Regulatory Law raised by any Governmental Authority, in good faith order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the Transactions, including (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with all applicable any Governmental Authorities Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of the Company and undertake its Subsidiaries, (C) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (D) terminating any joint venture or other arrangement of the Company and its Subsidiaries, (E) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries or (F) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with any Governmental Authority in connection with any of the foregoing) and, in the case of actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action) (each of (A) to (F), a “Remedial Action”); provided, that the Company shall not take any of the foregoing actions without Parent’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned). Without limiting the foregoing, Parent and the Company shall respond to and seek to resolve as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that objections asserted by any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholeTransactions. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party or its Affiliates to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon on the Closing. The Purchaser Parent shall (i1) control direct the strategy for obtaining any Consents approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult Transactions and (2) develop, in good faith cooperation with the Seller regarding such strategyCompany, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser Parent nor the Seller Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Regulatory Laws or enter into a timing agreement with any Governmental Authority, or withdraw its initial filing pursuant to any Regulatory Law, as the case may be, and refile any of them, without the prior written consent of the other party. In furtherance and not in limitation of this Section 5.03(c) and Section 5.03(d), the parties hereto shall use reasonable best efforts to defend through litigation any claim asserted in court by any Person, including any Governmental Authority, under any Regulatory Laws in order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that could restrain, delay or prevent the Closing.
(ed) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material substantive respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective SubsidiariesAffiliates, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in Transactions subject to the rules and regulations under the HSR Actqualifications applicable to clause (iv), and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive in such meetings and conferences. Parent and the Company shall have the right to review in advance all written materials submitted to any Governmental Authority in connection with the Transactions, in each case to the extent such materials or communications are related to any Regulatory Laws; provided, that any such materials may be redacted (A) to remove references concerning the valuation of, other bidders for, or the assessment of other strategic alternatives available to, the Company, (B) as necessary to comply with contractual arrangements or applicable Law and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”, in which case such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the advance written consent of the party providing such materials.
(fe) In furtherance Without limiting Section 5.03(c), in the event that any Action is commenced challenging the Merger and Transactions and such Action seeks, or would reasonably be expected to seek, to prevent consummation of the obligations set forth in Section 7.01(a) Merger and otherwise subject to the terms of this Section 7.01Transactions, the Seller Company, Parent and the Purchaser Merger Sub shall use their respective reasonable best efforts to obtain approval from FERC pursuant take any and all action to Section 203 resolve any such Action and each of the FPA Company, Parent and Merger Sub shall cooperate with each other to contest any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in order to consummate effect and that prohibits, prevents or restricts consummation of the Merger and the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten .
(10f) calendar days after From the date of this Agreement. The Purchaser Agreement until the Closing Date or earlier termination in accordance with Article VII, without the prior written consent of the Company, Parent and its Affiliates Merger Sub shall make all necessary post-Closing filings not, and submissions pursuant Baring Private Equity Asia Fund VIII L.P. shall not, acquire or agree to FERC’s rulesacquire any rights, including all applicable deadlines.
assets, business, Person or division thereof (g) In connection with the Company Sites located in Pedricktownthrough acquisition, New Jerseylicense, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to (i) impose any material delay in the parties acknowledge that obtaining of, or materially increase the execution risk of this Agreement not obtaining any applicable clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, or cause Parent, Merger Sub or the Company to be required to obtain any additional clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, under applicable Regulatory Laws with respect to the Merger and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)Transactions, (ii) materially increase the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (risk of any Governmental Authority entering an order prohibiting the “ISRA Filing”Transactions, or(iii) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and prevent or materially delay the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserMerger.
(hg) Notwithstanding anything to the contrary herein, subject to the proviso in this Agreementsentence, nothing in this Section 5.03 shall require Parent to take or agree to, or cause any of its Affiliates (other than Merger Sub or any of its other Subsidiaries, if any) to take or agree to, any Remedial Action or other action specified in this Section 5.03 with respect to EQT AB, any investment funds or investment vehicles affiliated with, or managed or advised by, EQT AB or its Affiliates or any portfolio company (as such term is commonly understood in the Seller private equity industry) or investment of EQT AB or of any such investment fund or investment vehicle, or interest therein under this Section 5.03, in each case, other than with respect to (x) the Company and its Subsidiaries or (y) the assets, properties, business, operations or ownership of any of the Company and its Subsidiaries; provided, that, notwithstanding the foregoing, (i) nothing in this Section 5.03 shall qualify or limit in any respect the obligations of Parent and Merger Sub to (and to cause its Affiliates shall have no obligation to pay money or offer or cooperate and provide information in order for Parent and Merger Sub to) (A) make any concession necessary filings with or grant any accommodation submissions to, or supply information or documentation to, or engage in communications with, Governmental Authorities as required by this Section 5.03 and (financial B) obtain all necessary information, documentation or otherwise) cooperation required from its Affiliates in order to any Governmental Authority or other third party in connection comply with the performance of their respective Parent’s and Merger Sub’s obligations under this Section 7.015.03 and (ii) any determination as to Parent’s and Merger Sub’s compliance with its obligations under this Section 5.03 shall be made without regard to the ability of Parent to control the applicable Affiliate.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller Parties shall, and each shall cause their respective controlled Affiliates to, use their respective commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effectiveeffective the Transactions, in the most expeditious manner each case as promptly as reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions Transactions, including, without limitation, all Conforming Estoppels, SNDAs, and Transferred Real Property Lease Consents, provided, in connection with any third party Consent and except as expressly set forth in this Agreement, that no member of the Seller Group shall be required to (1) pay any consideration to or out of pocket costs of or to the third party therefor, (2) commence, defend or participate in any Action in connection therewith or (3) offer or grant any accommodation (financial or otherwise) to any third party in connection therewith, (iii) executing and delivering any additional instruments necessary to consummate the Transactions and (iv) defending or contesting in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to (A) Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)B) Purchased Assets, Manufacturer Consents or Transferred Interests, which are dealt with in Section 2.04.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions within ten (which shall request 10) business days following the early termination of any waiting period applicable to date hereof (unless the Transactions under the HSR Actparties otherwise agree) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to use their respective commercially reasonable efforts to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholepracticable. For the avoidance of doubt and notwithstanding Notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement7.01, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategypromptly take, and (ii) coordinate the overall development of the positions or cause to be taken taken, any and all actions necessary to secure the regulatory actions to be requested in any filing expiration or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and termination of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act (“HSR Approval”) or any other Antitrust Laws Law or enter into a timing agreement any other Consent under Antitrust Laws, and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, without in order to prevent the prior written consent entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other partyagreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of the Purchaser or any of its Affiliates (including, after the Closing, any Transferred Entities and Purchased Assets), (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Purchaser or any of its Affiliates (including, after the Closing, any Transferred Entities and Purchased Assets), (D) terminating existing relationships, contractual rights or obligations of the Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities), (E) terminating any joint venture or other arrangement, (F) creating any relationship, contractual right or obligation of the Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) or (G) effectuating any other change or restructuring of the Purchaser or any of its Affiliates (including, after the Closing Date, the Transferred Entities) (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of actions by or with respect to the Seller Parties, by consenting to such action by the Seller Parties (including any Consents required under this Agreement or the other Transaction Documents with respect to such action); provided that any such action may be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. No actions taken pursuant to this Section 7.01 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur.
(ec) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and allow the other party parties to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views of such the other party parties with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”), FERC DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports4(c) documents” as those terms are that term is used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive such meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(hd) Notwithstanding anything to the contrary in this Agreement, the Seller Parties and its their respective Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall each Party will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doingdoing or causing to be done, all things necessary, proper or advisable under this Agreement and applicable Laws to cause consummate the conditions to Combination and the Closing to be satisfied other transactions contemplated by the Transaction Documents as promptly soon as practicable and to consummate and make effective, in after the most expeditious manner practicable, the Transactionsdate hereof, including (i) preparing and filing as promptly and fully as practicable all documentation to effect all necessary filingsapplications, notifications, notices, petitions, statements, registrations, submissions of information, applications petitions and other documents (including with respect filings and to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws obtain as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) 5.4 of the Spinco Disclosure Schedule, Section 6.5 of the Spinco Disclosure Schedule and otherwise subject Section 7.5 of the Utah Disclosure Schedule that are required to be obtained or made at or prior to the terms Effective Time and all other material consents, waivers, licenses, orders, registrations, approvals, permits, rulings, expirations or terminations of this Section 7.01waiting periods, the Seller authorizations and the Purchaser shall use their respective reasonable best efforts clearances necessary or advisable to obtain approval be obtained from FERC pursuant to Section 203 of the FPA any third party and/or any Governmental Authority in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, Combination or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will requireother transactions contemplated by the Transaction Documents (collectively, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRAApprovals”), (ii) the Seller shall complete taking all reasonable steps as may be necessary to obtain all Approvals and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject taking reasonable efforts to Seller’s indemnification obligations share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 8.7 in a manner so as to preserve the applicable privilege; provided that, with respect to Approvals from third parties (other than Governmental Authorities) required under existing Contracts, such efforts shall not include any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and requirement or obligation of any Party to make any payment to any such third party or assume any Liability not otherwise required to be executed paid or assumed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary applicable Party pursuant to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money an existing Contract or offer or make any concession or grant any financial accommodation (financial or otherwise) to any Governmental Authority or other benefit to such third party in connection with the performance of their respective obligations under this Section 7.01.not
Appears in 1 contract
Sources: Business Combination Agreement
Efforts. (a) Subject to On the terms and subject to the conditions of this AgreementAgreement (including the provisions of Section 5.04 with respect to Seller’s obligations to obtain any required Authorizations or consents of third parties), Seller, on the Purchaser one hand, and Purchaser, on the Seller other hand, shall use their respective reasonable best efforts (unlessto take or cause to be taken all actions and to do or cause to be done all things necessary or appropriate to satisfy the conditions to the Closing, to consummate the transactions contemplated hereby as promptly as practicable and to comply promptly with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing (it being understood that it shall be the sole responsibility of Purchaser and/or a legal advisor of Purchaser to file or submit the notifications, registrations and/or filings set forth in Section 5.03(c) and in items 1 and 2 of Section 6.01(a) of the Seller Disclosure Letter (including any actionadditional materials that may be required) with the applicable Governmental Entity).
(b) Prior to the Closing, another standard each of performance is expressly provided for herein) Seller and Purchaser shall, and shall cause its respective Affiliates to, use its reasonable best efforts to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, all things necessary or appropriate for it to do under applicable Laws prior to the Closing, which actions shall include the making and assist filing of (or cooperating in the making and cooperate filing of) the registrations and filings set forth in Section 6.01(a) of the Seller Disclosure Letter and all other required registrations and filings to, and seeking all required approvals of, Governmental Entities and furnishing all information (including in connection with the notifications, registrations and/or filings set forth in items 1 and 2 of Section 6.01(a) of the Seller Disclosure Letter) required by applicable Law or requested by such Governmental Entities or the other parties party in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, connection with such registrations, submissions filings and approvals (it being understood that it shall be the sole responsibility of informationPurchaser and/or a legal advisor of Purchaser to file or submit the notifications, applications registrations and/or filings set forth items 1 and other documents 2 of Section 6.01(a) of the Seller Disclosure Letter (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material materials that may be requested pursuant to required) with the HSR Act applicable Governmental Entity). Each of Seller and Purchaser shall, and shall cause its respective Affiliates to, cooperate with each other in respect of the making of such other Antitrust Laws registrations, filings and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Dateapprovals.
(c) Without limiting the foregoingFollowing Closing, the each of Seller and Purchaser and the Seller shall, and shall cause their its respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary for it to do to comply promptly and in a timely manner with (ior to facilitate the prompt and timely compliance with) all legal requirements that may be imposed on Seller or Purchaser by Governmental Entities in connection with the transactions contemplated hereby or the conduct or operation of the Business by the Purchaser following the Closing, which actions shall include the making and filing of (or cooperating in the making and filing of) the registrations and filings set forth in Section 5.03(c) of the Seller Disclosure Letter and, to the extent applicable following the Closing, in Section 6.01(a) of the Seller Disclosure Letter (and any amendments, revisions or follow-up requests related thereto), and all other required registrations and filings to, and seeking all required approvals of, Governmental Entities and furnishing all information (including in connection with the notifications, registrations and/or filings set forth in Section 5.03(c) of the Seller Disclosure Letter) required by applicable Law or requested by such Governmental Entities or the other party in connection with such registrations, filings and approvals (it being understood that it shall be the sole responsibility of Purchaser and/or a legal advisor of Purchaser to file or submit the notifications, registrations and/or filings set forth in Section 5.03(c) of the Seller Disclosure with the applicable Governmental Entity). Each of Seller and Purchaser shall, and shall cause its respective Affiliates to, cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with respect of the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views making of such other party with respect to such filingregistrations, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlinesapprovals.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unlessto take promptly, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or and cause to be taken, all actions, and doto do promptly, or and cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) preparing and filing as promptly and fully as practicable with any Governmental Entity or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining and maintaining all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, waivers, clearances, registrations, permits, authorizations and other confirmations from any Governmental Authority Entity or third party other Third Party that are necessary, proper or advisable to consummate the Transactions Merger and the other transactions contemplated by this Agreement (iii) executing including the Specified Approvals and delivering any additional instruments necessary the Parent Approvals); provided that the obligations set forth in this sentence shall not be deemed to consummate have been breached as a result of actions by the TransactionsCompany or its Subsidiaries permitted by Section 6.4, in the case of each of clauses (i) through (iiiSection 8.1(c)(i), other than with respect to filings, notices, petitions, statements, registrations, submissions and the last sentence of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d6.5(c).
(b) Each In furtherance and not in limitation of the parties hereto agrees to (i) foregoing, the Company, Parent and Merger Sub and their respective Affiliates shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to other transactions contemplated hereby with the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) as promptly as practicable after the date hereof and in any event within seven (7) Business Days of the date hereof. The Company, Parent and Merger Sub shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust, competition, trade regulation or similar matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the Merger or any of the other transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto.
(c) Parent shall offer to take (and if such offer is accepted, commit to take and take) with respect to itself and its controlled Affiliates and the Company and its Subsidiaries any and all actions necessary, proper or advisable to avoid and eliminate each and every impediment under any antitrust, competition, trade regulation or other applicable Law that may be asserted by the FTC, the Antitrust Division, any State Attorney General, any other Governmental Entity or any other Person with respect to the Merger or any of the other transactions contemplated by this Agreement so as to enable the consummation thereof as promptly as practicable after the date hereof, and in any event no later than the End Date, including (i) proposing, negotiating, offering to commit to effect (and if such offer is accepted, committing to effect and effecting), FERC by order, consent decree, hold separate order, trust, or otherwise, the sale, divestiture, license, disposition or hold separate of assets or businesses of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective Subsidiaries or controlled Affiliates, (ii) proposing, negotiating, and offering to commit to take any action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective Subsidiaries or controlled Affiliates), and if the offer is accepted, committing to take and taking such action, (iii) terminating, relinquishing, modifying or waiving existing or future relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective Subsidiaries or controlled Affiliates, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective Subsidiaries or controlled Affiliates and (v) entering or offering to enter into agreements and stipulating to the entry of an order or decree or filing appropriate applications with any Governmental Entity in connection with any of the actions contemplated by the foregoing clauses (i) through (iv) (provided that the Company shall not be obligated to take any such action unless the taking of such action is expressly conditioned upon the consummation of the Merger and the other transactions contemplated hereby), in each case, as may be necessary, proper or advisable in order to obtain clearance under the HSR Act, to avoid the entry of, or to effect the dissolution of or to vacate or lift, any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that would otherwise have the effect of restraining, preventing or delaying the consummation of the Merger or any of the other transactions contemplated hereby, or to avoid the commencement of any action or proceeding that seeks to prohibit the Merger or any other transaction contemplated by this Agreement. In addition, Parent shall defend (including through litigation on the merits) against any claim asserted by any Governmental Entity or any other Person in order to avoid the entry of, or have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, prevent or delay the consummation of the Merger or any of the transactions contemplated by this Agreement, including by defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Merger or any of the other transactions contemplated hereby. The Company and its counsel shall have the opportunity to participate in any litigation, action, suit or proceeding described in the preceding sentence, and Parent and its counsel shall cooperate with and keep informed the Company and its counsel in connection with such litigation, action, suit or proceeding.
(d) Parent shall not (and shall cause its controlled Affiliates not to) take any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or lines of business similar to the products, services or lines of business of the Company and its Subsidiaries) if such action could make it more likely that there would arise any impediments under any antitrust, competition, trade regulation or other applicable Law that may be asserted by the FTC, the Antitrust Division, any State Attorney General or any other Governmental Authority Entity to the consummation of the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date hereof.
(e) Each party hereto shall (i) promptly notify the other parties hereto of any material written communication received to that party from the FTC, the Antitrust Division, any State Attorney General or given any other Governmental Entity and, subject to applicable Law, permit the other parties hereto to review in advance any proposed written communication to any of the foregoing and incorporate the other party’s reasonable comments, (ii) not participate in or agree to participate in any substantive meeting or discussion with any Governmental Entity in respect of any filing, investigation or inquiry concerning any antitrust, competition or trade regulation matters in connection with any proceeding by a private Person, in each case regarding any of this Agreement or the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult Merger unless it consults with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiariesin advance and, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate inthereat and (iii) furnish the other parties hereto with copies of all correspondence, substantive meetings filings, and conferences.
communications (fand memoranda setting forth the substance thereof) In furtherance of the obligations set forth in Section 7.01(a) between them and otherwise subject to the terms of this Section 7.01, the Seller their Affiliates and the Purchaser shall use their respective reasonable best efforts Representatives, on the one hand, and any Governmental Entity or members or their respective staffs, on the other hand, with respect to obtain approval from FERC pursuant to Section 203 of the FPA any antitrust, competition or trade regulation matters in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation Merger, except that any materials concerning the Company’s valuation of the Transactions will requiretransaction, the Company’s internal financial information or competitively sensitive information of the Company and its Subsidiaries may be redacted or limited to outside counsel pursuant to any applicable joint defense or common interest agreement. Without limiting the foregoing, Parent agrees that, at any time in an investigation, if a Governmental Entity suggests or proffers a settlement of the investigation to permit the Merger and the parties other transactions contemplated by this Agreement to be consummated, Parent shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended promptly (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA any event within two (the “ISRA Filing”2) within five days of the date of this Agreement, (iiicalendar days) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with communicate the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything the offer to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01Company.
Appears in 1 contract
Sources: Merger Agreement (Belk Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods, applications from Governmental Entities and other documents (including with respect the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Permits, including Environmental Permits)Governmental Entity, (ii) obtaining using its commercially reasonable efforts to obtain all Consents necessary consents, approvals or waivers from third parties, (including iii) subject to Section 7.5, the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company, its Subsidiary, Parent or Merger Sub be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof, file any and all required notification and report forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement, and use their commercially reasonable efforts to cause the expiration or termination of any Permitsapplicable waiting periods under the HSR Act, including Environmental Permits(ii) from use their commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely using their commercially reasonable efforts to obtain all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Authority Entity as promptly as practicable any additional information or third party documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments transactions contemplated hereby, including taking all further action as may be necessary to consummate resolve such objections, if any, as the TransactionsFTC, in the case DOJ, state antitrust enforcement authorities or competition authorities of each of clauses any other nation or other jurisdiction or any other Person may assert under any Law (i) through (iii), other than with respect to filingsany stockholder litigation or claim related to this Agreement, notices, petitions, statements, registrations, submissions of information, applications and the Merger or the other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (ctransactions contemplated by this Agreement) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior to no later than the Termination Date.
), including (cx) Without limiting the foregoingproposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Purchaser and the Seller shallsale, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer divestiture or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, disposition of particular assets, categories of any assets or lines businesses of business of such party, including assets Parent or lines of business its Subsidiaries or Affiliates or of the Transferred Entities Company or its Subsidiary and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the termination Surviving Corporation’s) or Affiliates’ freedom of any existing relationships action with respect to, or contractual rights its ability to retain, one or more of its or its Subsidiaries’ (including the Transferred Entities), (iiSurviving Corporation’s) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of Affiliates’ businesses, product lines or assets (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause clauses (i), x) and (iiy) or (iii) an being “Antitrust Remedial ActionDivestiture Actions”), in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other than order in any Antitrust Remedial Actions suit or proceeding that (A) solely apply to would otherwise have the Business from and after effect of preventing or delaying the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, Closing; provided that neither the Seller Company nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) Subsidiary shall be required to sell, divest, dispose of or enter into any other arrangementsbecome subject to, or consent or agree to or otherwise take any other Antitrust Remedial Action action with respect to, their businessesany requirement, product linescondition, understanding, agreement or order of a Governmental Entity to sell, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or operations pursuant to this Section 7.01 business of the Company or any other provision of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and the “reasonable best efforts” of the Seller Merger Sub shall not include taking any of the Antitrust Remedial Actions.
(dand shall cause their Subsidiaries and Affiliates not to) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(ec) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 7.3, submission or substantive written communication with a and, subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other reasonably apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated hereby, including promptly furnishing the other with copies of all material notices or other material communications received by the Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiary, or substantive written communicationproposals from third parties with respect thereto, (iiy) keep the other parties hereto informed in all material respects as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division its operations. Each of the Department of Justice (the “DOJ”)Company, the Federal Trade Commission (the “FTC”)Parent and Merger Sub agrees not to participate in any meeting or discussion, FERC either in person or by telephone, with any other Governmental Authority and of any material communication received or given Entity in connection with any material matter relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 7.3, if any administrative or judicial action or proceeding, including any proceeding by a private Personparty, in is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each case regarding any of the TransactionsCompany, Parent and Merger Sub shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Merger and the other transactions contemplated by this Agreement.
(iiie) Notwithstanding the foregoing provisions of this Section 7.3 or anything else herein to the contrary, Parent shall have the sole right (subject to applicable Laws relating compliance with its obligations under this Section 7.3) to determine, direct and have full control over the exchange of information, strategy and to process by which the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations will seek required approvals under the HSR ActAct and any other antitrust Laws and to control the defense or prosecution of any claims, and (iv) actions or proceedings relating thereto, including all matters relating to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferencesany Divestiture Actions.
(f) In furtherance of the obligations set forth Nothing in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser 7.3 shall use their respective reasonable best efforts limit a party’s right to obtain approval from FERC terminate this Agreement pursuant to Section 203 of the FPA in order 9.1(b) or Section 9.1(c) so long as such party has, prior to consummate the Transactions. The Purchaser and such termination, complied with its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.017.3.
Appears in 1 contract
Sources: Merger Agreement (Pantry Inc)
Efforts. (a) Subject to the terms and conditions herein provided (including Sections 5.5 and 5.6), each of this Agreement, the Purchaser Buyer and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws to cause the conditions to the Closing to be satisfied consummate and make effective as promptly as practicable and to consummate and make effective, in after the most expeditious manner practicable, date hereof the Transactionstransactions contemplated by this Agreement, including (i) preparing and filing as promptly and fully all documentation to effect as practicable all necessary filingsapplications, notices, petitions, statementsfilings, ruling requests, and other documents to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, submissions of informationapprovals, applications permits, rulings, authorizations, waiting period expirations, and other documents clearances necessary to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (including with respect to any Permitscollectively, including Environmental Permits), the “Governmental Approvals”) and (ii) obtaining as promptly as practicable taking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments steps as may be necessary to consummate the Transactions, obtain all such Governmental Approvals. In furtherance and not in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each limitation of the parties hereto foregoing, each Party agrees to (iA) make an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated hereby as promptly as reasonably practicable following the date of this Agreement, (and but in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following no later than 10 Business Days after the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entitieshereof), (iiB) proffer or consent make an appropriate and complete filing of a notification (Anmeldung) to any other restriction, prohibition or limitation on the ownership or operation German Federal Cartel Office (Bundeskartellamt) pursuant to Sec. 39 of any the German Act against Restraints of such assets or lines of businesses, or Competition (iiiGesetz gegen Wettbewerbsbeschränkungen) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions transactions contemplated hereby as promptly as practicable (but in any of event no later than 10 Business Days after the actions described in the foregoing clause (idate hereof), (iiC) or (iii) an “Antitrust Remedial Action”), make all other than any Antitrust Remedial Actions that (A) solely apply to filings as mutually agreed by the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected Parties to be material required pursuant to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action Laws with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, transactions contemplated hereby as promptly as practicable and (iiD) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or not extend any applicable waiting period under the HSR Act or any other Antitrust Laws or Law, nor enter into a timing any agreement with the U.S. Federal Trade Commission (the “FTC”) or the U.S. Department of Justice (the “DOJ”) or any other Governmental AuthorityEntity not to consummate the transactions contemplated by this Agreement, without except with the prior written consent of the other party.
(e) Party. Each of Party shall substantially comply as promptly as practicable with any request for additional information or documentary material that may be made pursuant to the parties hereto shall HSR Act or any other Antitrust Law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Antitrust Law as soon as possible.
(b) Each of Buyer and Seller shall, in connection with the actions referenced in Section 5.3(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, (i) reasonably cooperate in all respects with each other in connection with any filingcommunication, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, party; (ii) keep the other parties hereto Party and/or its counsel reasonably informed in all material respects and on a reasonably timely basis of any material communication received by such party Party from, or given by such party Party to, the Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”), FERC DOJ or any other U.S. or other Governmental Authority Entity and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, transactions contemplated hereby; (iii) subject to applicable Laws relating to the exchange of informationconsult with each other, and to the extent reasonably practicable, consult in advance of any meeting or telephone call with the other parties hereto with respect to information relating to FTC, the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person DOJ or any other Governmental Authority Entity or, in connection with the Transactionsany proceeding by a private party, with any other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, Person; and (iv) to the extent permitted not prohibited by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority Entity or other Person, give provide the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and Party and/or its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with counsel a reasonable opportunity to review and comment in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of Seller; and provided, further, that neither Party is required to provide the other Party with a copy of its Notification Report form pursuant to the HSR Act. Buyer and Seller, as each deems advisable and necessary, may reasonably designate any competitively sensitive material to be provided to the other under this Section 5.3(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance in writing from the source of the materials (Buyer or Seller, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the Parties contained in Sections 5.3(a) and 5.3(b), each of Buyer and Seller shall use its reasonable best efforts to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Outside Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any Antitrust Law so as to enable the Closing to occur as soon as possible (and in any event no later than the Outside Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such filings and submissions) businesses, product lines or assets of Buyer and/or the members of the Transferred Entity Group or any of the Transferred Assets and (y) have agreeing to divest, sell, dispose of, or hold separate, any of the right to manage businesses, product lines or assets of Buyer and/or the members of the Transferred Entity Group or any of the Transferred Assets; provided, however, that any action contemplated by foregoing clauses (x), and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with (y) is conditioned upon the terms consummation of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserthe transactions contemplated by this Agreement.
(hd) Notwithstanding anything to the contrary in Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Closing Date, each of Buyer and Seller shall not, and shall cause its Subsidiaries and Affiliates shall have no obligation to pay money not, take or offer agree to take any action that would reasonably be expected to prevent or make any concession or grant any accommodation (financial or otherwise) to materially delay the Parties from obtaining any Governmental Authority or other third party Approval in connection with the performance of their respective obligations under transactions contemplated by this Agreement.
(e) Whether or not the Sale is consummated, Buyer and Seller shall be equally responsible for all filing fees and payments to any Governmental Entity in order to obtain any consents, approvals or waivers pursuant to this Section 7.015.3.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective all commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect obtaining all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Company Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and delivering the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)transactions contemplated by this Agreement.
(b) Each Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the parties hereto agrees to (i) make an appropriate filing status of a Notification and Report Form pursuant matters relating to the HSR Act completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Datetransactions.
(c) Without limiting the foregoing, the Purchaser In furtherance and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate not in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business limitation of the Transferred Entities (including the termination of any existing relationships or contractual rights covenants of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary parties contained in this Section 7.01 5.6, if any administrative or judicial action or proceeding, including any other provision proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of this Agreementany Law, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” each of the Seller Company and Parent shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective commercially reasonable best efforts to obtain approval from FERC pursuant contest and resist any such action or proceeding and to Section 203 of the FPA have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in order to consummate the Transactions. The Purchaser effect and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsthat prohibits, including the execution of, prevents or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the restricts consummation of the Transactions will require, Merger and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of other transactions contemplated by this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser Company and the Seller Parent shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Law to cause consummate and make effective the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as promptly as practicable and to consummate and make effectiveafter the date of this Agreement and, in any event, prior to the most expeditious manner practicable, the TransactionsEnd Date, including using reasonable best efforts to (i) preparing prepare and filing file, in consultation with the other Parties, as promptly and fully as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining obtain and maintain all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Transactions Merger and the other transactions contemplated by this Agreement (iii) executing and delivering any additional instruments necessary to consummate the Transactionswhether or not such approvals, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statementsconsents, registrations, submissions of informationpermits, applications authorizations and other Consents relating confirmations are conditions to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (dthe consummation of the Merger pursuant to Article VIII).
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall make as promptly as practicable after the date of this Agreement (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to Filing, (ii) the Transactions Ex-U.S. Filings, (which iii) the FERC Application, (iv) the NJDEP Application, (v) the FCC Filing and (vi) the draft CFIUS Notice; provided that each of Parent and the Company shall request the early termination of any waiting period applicable to the Transactions under make (x) the HSR ActFiling within ten (10) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following Business Days after the date of this Agreement, (y) the FERC Application and in any event with respect to filings made pursuant to the HSR Act NJDEP Application within ten twenty (1020) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days after the date of this Agreement)Agreement or, in each case, if agreed by the Parties, otherwise as soon as possible, and (iiz) the draft CFIUS Notice within thirty (30) days after the date of this Agreement and the final CFIUS Notice promptly after receipt of confirmation that CFIUS has no further comment to the draft CFIUS Notice. Each of the Company and Parent shall use reasonable best efforts to (A) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided foregoing, including any information, documentation or other material that may be requested by a Governmental Authority with respect to any controlling person of Parent, (B) furnish to each other any necessary information and reasonable assistance as the Purchaser shall consult other may request in good faith connection with the Seller regarding such strategyforegoing, and (iiC) coordinate take all other actions necessary or advisable to cause the overall development expiration or termination of any applicable waiting periods under the HSR Act and to obtain the Ex-U.S. Approvals, the FERC Approval, the NJDEP Approval, the FCC Consents, and the CFIUS Approval, in each case as promptly as practicable, and in the case of the positions CFIUS Approval within the timeframes set forth under the DPA, and, in any event, prior to be taken the End Date. The Company and Parent shall each request early termination of the waiting period with respect to the Merger under the HSR Act. Parent shall pay 100% of the filing fees payable under the HSR Act or in connection with the Ex-U.S. Filings, the FERC Application, the NJDEP Application, the filing fee associated with the CFIUS Notice and all FCC filing fees payable by the Company, Parent and their respective Subsidiaries relating to the Merger, regardless of whether the transactions contemplated by this Agreement are consummated.
(c) Except as prohibited by applicable Law or Order, each of Parent and the regulatory actions to be requested Company shall (i) cooperate and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private personparty, allow including by allowing the other party Party to have a reasonable opportunity to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views comment on drafts of such other party with respect to such filing, submission, or substantive written communicationfilings (except HSR filings) and submissions, (ii) keep promptly inform the other parties hereto informed Party of (and if in all material respects and on a reasonably timely basis of writing, supply to the other Party) any material substantive communication received by such party Party from, or given by such party Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”)Justice, FERC, NJDEP, the Federal Trade Commission (the “FTC”)FCC, FERC CFIUS or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iii) subject consult with each other prior to applicable Laws relating taking any material position with respect to the exchange of informationfilings contemplated by Section 7.1(b) in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to the extent reasonably practicable, consult filings contemplated by Section 7.1(b) and (v) coordinate with the other parties hereto in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby; provided, however, that the Parties may redact information related to the valuation of the Company and personal identifier information from any materials required to be provided pursuant to this Section 7.1(c), and may reasonably designate competitively-sensitive information in such materials as “outside counsel only.”
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, (i) none of the Company, Parent or their respective Affiliates shall participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of the Merger (including with respect to information relating any of the actions referred to in Section 7.1(a)) without the other, (ii) each of the Company and Parent shall give the other parties hereto reasonable prior notice of any such meeting or conversation and their respective Subsidiaries(iii) in the event either the Company or Parent is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, the participating or attending Party shall keep the non-participating or non-attending, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection Party reasonably apprised with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferencesrespect thereto.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(he) Notwithstanding anything to the contrary in this AgreementSection 7.1, the Seller Parent shall, and shall cause its Affiliates shall have no obligation Subsidiaries to, take any action to pay money avoid or offer or make any concession or grant any accommodation (financial or otherwise) to eliminate each and every impediment that may be asserted by any Governmental Authority or other third party (including in connection with the performance HSR Filing, the Ex-U.S. Filings, the FERC Application, the NJDEP Application, the FCC Filing and the CFIUS Notice) with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as promptly as practicable and, in any event, prior to the End Date, including (i) the prompt use of their respective obligations under its best efforts to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including (A) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of Parent or any of its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations) and (B) the proffer and agreement by Parent of its willingness to take such other actions, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations), in each case if such action should be necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any Proceeding in any forum or (y) issuance of any Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Governmental Authority, (ii) defending through litigation on the merits any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Authority, seeking to delay past the End Date, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement and (iii) taking, in the event that any permanent, preliminary or temporary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the transactions contemplated by this Agreement in accordance with its terms unlawful or that would delay past the End Date, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, any and all steps (including the appeal thereof and the posting of a bond) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation as promptly as practicable and, in any event, prior to the End Date. Notwithstanding anything in this Agreement to the contrary, Parent shall not be required to, solely in connection with the CFIUS Notice, take any action pursuant to this Section 7.017.1(e) that would have a material adverse effect on the Company and its Subsidiaries, taken as a whole. Nothing in this Agreement shall obligate Parent or the Company to agree to any divestiture or other remedy not conditioned on the consummation of the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Covanta Holding Corp)
Efforts. (a) Subject to the terms and conditions herein provided, Purchaser, ▇▇ ▇▇▇▇▇▇▇, Management Blocker and the Company shall use its respective reasonable best efforts, to promptly make or cause to be made, and to the extent applicable: (i) as soon as practicable and in any event, within twenty (20) Business Days after the date of this Agreement, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing filings of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement; and (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Actii) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following after the date of this Agreement, (all other necessary filings, forms, declarations, notifications, registrations and in notices with other Governmental Entities under any event with respect to filings made pursuant other Antitrust Law applicable to the HSR Act within ten transactions contemplated by this Agreement (10) calendar days, provided, that collectively the obligation to make such filings “Government Approvals”). Each Party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, use its reasonable best efforts to: (w) respond at the earliest practicable date to cooperate any requests for additional information made by the U.S. Department of Justice, the Federal Trade Commission, or any other Governmental Entity in connection with any Antitrust Law applicable to the transactions contemplated by this Agreement; (x) act in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection cooperate with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and other party in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating Entity in connection with any Antitrust Law applicable to the Transactions transactions contemplated by this Agreement; (y) furnish to each other all information required for any filing, form, declaration, notification, registration and notice under any Antitrust Law applicable to the transactions contemplated by this Agreement, subject to advice of such party’s antitrust counsel; and (z) request early termination of the waiting period under the HSR Act and take all other regulatory matters incidental thereto. Neither actions reasonably necessary and consistent with this Section 7.2 to cause the Purchaser nor expiration or termination of the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period periods under the HSR Act or any other Antitrust Laws or enter into a timing agreement Law applicable to the transactions contemplated by this Agreement. In connection with any Governmental Authoritythe foregoing, without the prior written consent of the other party.
(e) Each of the parties each party hereto shall use its reasonable best efforts efforts: (1) to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow give the other party reasonable prior notice of any communication with, and any proposed understanding or agreement with, any Governmental Entity regarding any investigations, proceedings, filings, forms, declarations, notifications, registrations or notices, and permit the other to review such filing, submission, or substantive written communication and discuss in advance, and consider in good faith the views of the other in connection with, any proposed communication, understanding or agreement with any Governmental Entity, in each case under any Antitrust Law applicable to the transactions contemplated by this Agreement, subject to advice of such party’s antitrust counsel; (2) not to participate in any meeting or conversation, or engage in any substantive conversation with any Governmental Entity in respect of any filings or inquiry under any Antitrust Law applicable to the transactions contemplated by this Agreement, without giving the other party with respect prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, the opportunity to such filingattend and/or participate therein; (3) if attending a meeting, submissionconference, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on conversation with a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to Antitrust Law applicable Laws relating to the exchange of informationtransactions contemplated by this Agreement, from which the other party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending, to keep the other reasonably apprised with respect thereto; and (4) to the extent reasonably practicable, consult and cooperate with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with any information or proposals submitted in connection with any proceeding, inquiry, or other proceeding under any Antitrust Law applicable to the performance of their respective obligations under transactions contemplated by this Section 7.01Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement in the most expeditious manner reasonably practicable after the date hereof and in any event prior to the End Date, including (i) causing all of the Offer Conditions and all of the conditions to the Closing set forth in Article 7 to be satisfied satisfied, (ii) the obtaining and maintaining of all necessary actions or non-actions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (including the Specified Approvals) from Governmental Entities and the making of all necessary registrations, notifications and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iii) the obtaining and maintaining of all necessary consents, approvals or waivers from third parties, (iv) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement and (v) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) The parties hereto shall, and shall cause their respective Affiliates to, use reasonable best efforts to (i) cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, or with respect to, any third parties or Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including in connection with the Specified Approvals) and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods, (ii) supply to any Governmental Entity as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other any additional information or documents (including with respect that may be requested pursuant to any PermitsLaw or by such Governmental Entity and (iii) take, including Environmental Permits)or cause to be taken, (ii) obtaining all Consents (including with respect other actions and do, or cause to any Permitsbe done, including Environmental Permits) from any Governmental Authority or third party all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments transactions contemplated hereby, including taking all such further action as may be necessary to consummate the Transactionsresolve such objections or resist or contest any Action, in the case of each of clauses if any, as any federal or state antitrust enforcement authorities or any other Governmental Entity or other Person may assert or bring under any applicable Law (iincluding any Antitrust and Foreign Investment Law) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby (which shall request including in connection with the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this AgreementSpecified Approvals), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Law (including any Antitrust Laws and Foreign Investment Law) that may be required asserted by any foreign Governmental Entity with respect to the Offer, the Merger or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction the other transactions contemplated by this Agreement so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as reasonably practicable after the date hereof, including (x) proposing, negotiating, committing to, agreeing to and in any event prior to the Termination Date.
(c) Without limiting the foregoingeffecting, by consent decree, hold separate order or otherwise, the Purchaser sale, divestiture, license, hold separate or disposition of any and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities equity interests, assets (whether tangible or intangible), products or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries, (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the termination Surviving Corporation’s) freedom of any existing relationships action with respect to, or contractual rights their ability to retain or hold, directly or indirectly, one or more of their Subsidiaries’ (including the Transferred EntitiesSurviving Corporation’s), equity interests, assets (ii) proffer whether tangible or consent intangible), products, or businesses, including any agreement to provide notice to or obtain prior approval from any other restriction, prohibition Governmental Entity of or limitation on the ownership or operation of for any of such assets or lines of businessesfuture transaction, or (iiiz) proffer creating, terminating or consent to enter any other Contract regarding any divesting relationships, ventures, contractual rights or obligations of such assets Parent or lines of businesses, in order to remedy any concerns its Subsidiaries or the Company or its Subsidiaries; provided that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller Company nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, divest, license, hold separate or otherwise dispose of or enter into any other arrangementsof, or take any other Antitrust Remedial Action with respect toto conduct, their businessesrestrict, product linesoperate, assets invest or otherwise change the assets, operations pursuant to this Section 7.01 or business of the Company or any other provision of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to the Company or its Subsidiaries only from and after the Effective Time in the event that the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and the “reasonable best efforts” of the Seller Merger Sub shall not include taking any of the Antitrust Remedial Actions.
(dand shall cause their Subsidiaries not to) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser shall (i) control In the strategy for obtaining event that any Consents from information in the filings submitted pursuant to this Section 6.7 or any Governmental Authority such supplemental information furnished in connection with therewith is deemed confidential by either party, the Transactions; provided that parties shall use their reasonable best efforts to maintain the Purchaser shall consult in good faith with confidentiality of the Seller regarding such strategysame, and (ii) coordinate the overall development parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view. Neither Parent, Merger Sub nor any of the positions to be taken and the regulatory actions to be requested in their Subsidiaries shall withdraw any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation registrations, applications, declarations, reports, submissions or other inquiry or litigation by or beforefilings with, or any negotiations withnotices to, a any Governmental Authority Entity relating to the Transactions Offer, the Merger and the other transactions contemplated by this Agreement, or enter into any timing agreement or agreement not to consummate the Offer, the Merger or the other transactions contemplated by this Agreement for any period of all other regulatory matters incidental thereto. Neither time, without the Purchaser nor Company’s prior written consent.
(c) Between the Seller date hereof and the earlier of the Effective Time and the Termination Date, Parent and Merger Sub shall commit not, and shall not permit any of their respective Subsidiaries to, enter into or consummate any agreement for an acquisition (by stock purchase, merger, consolidation, asset purchase, license or otherwise) that would reasonably be expected to (x) prevent, materially impair or agree with materially delay the obtaining of, or result in not obtaining or adversely affect in any material respect the ability of Parent or its Affiliates to procure, any authorizations, consents, orders, declarations or approvals of any Governmental Authority to stay, toll Entity or extend the expiration or termination of any applicable waiting period under necessary to consummate the HSR Act Offer, the Merger or any the other Antitrust Laws transactions contemplated by this Agreement, or enter into a timing agreement with (y) materially increase the risk of any Governmental AuthorityEntity entering an order, without ruling, judgment or injunction prohibiting the prior written consent consummation of the Offer, the Merger or the other partytransactions contemplated by this Agreement, or of the failure to be satisfied of any conditions set forth in Section 7.1.
(ed) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filingother actions pursuant to this Section 6.7, submission or substantive written communication with a Governmental Authority in connection with and, subject to applicable legal limitations, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated thereby, including any proceeding initiated by a private personpromptly furnishing the other with copies of notices or other communications (or, allow if not in writing, advise the other party orally of such notices or communications) received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Without limiting Parent’s obligations under this Section 6.7, Parent shall have the right to control the development and implementation of any strategy with respect to obtaining consents, clearances, authorizations and orders from any Governmental Entity and approvals pursuant to applicable Antitrust and Foreign Investment Laws, including (i) the process and strategy for responding to any formal or informal request for additional information and documents, (ii) the content of, and analysis contained in, any filings, notifications or communications (whether written or oral) with any Governmental Entity or (iii) whether to extend or restart the waiting, review or investigation period under any applicable Antitrust and Foreign Investment Laws; provided that Parent shall consult with and consider in good faith the views of the Company prior to making any decisions with respect to such strategy. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that Parent and the Company may, as each deems advisable and necessary, reasonably designate any sensitive materials provided to the other under this Section 6.7(d) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 6.7, materials provided pursuant to this Section 6.7 may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agrees not to participate in any meeting or discussion, in person, by videoconference or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance, considers in good faith the views of the other party with respect to such filingmeeting or discussion, submissionand, or substantive written communicationto the extent not prohibited by such Governmental Entity, (ii) keep gives the other parties hereto informed party the opportunity to attend and participate.
(e) In furtherance and not in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division limitation of the Department covenants of Justice (the “DOJ”)parties contained in this Agreement, the Federal Trade Commission (the “FTC”)including in this Section 6.7, FERC if any administrative or any other Governmental Authority and of any material communication received judicial Action or given in connection with proceeding, including any proceeding by a private Personparty, in is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each case regarding any of the TransactionsCompany, (iii) subject to applicable Laws relating to the exchange of information, Parent and to the extent Merger Sub shall reasonably practicable, consult cooperate with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant contest and resist any such Action or proceeding and to Section 203 have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the FPA in order to consummate Offer, the Transactions. The Purchaser Merger and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of other transactions contemplated by this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(gf) In connection Except as otherwise set forth in this Agreement, including this Section 6.7, nothing contained in this Agreement shall give Parent, Merger Sub, or any of its Affiliates, directly or indirectly, the right to control, supervise or direct the operations of the Company or any business thereof prior to the Closing Date. Prior to the Closing Date, the Company shall exercise, consistent with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement terms and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date conditions of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)complete unilateral control, (A) the “General Information Notice” shall identify supervision and be executed by direction over the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01business operations.
Appears in 1 contract
Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Purchaser and the Seller shall parties agrees to use their respective commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things actions that are necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable under this Agreement and applicable Laws to consummate and make effective, in effective the most expeditious manner Merger and the other transactions contemplated by this Agreement as promptly as practicable, including using commercially reasonable efforts to accomplish the Transactions, including following: (i) preparing and filing promptly and fully obtain all documentation to effect all necessary filingsconsents, noticesapprovals or waivers from, petitionsor participation in other discussions or negotiations with, statements, registrations, submissions of information, applications and other documents (including with respect to any Permitsthird parties, including Environmental Permits)under any Material Contract, (ii) obtaining obtain all Consents (including with respect necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and take all steps as may be necessary to obtain an approval or waiver from, or to avoid any PermitsAction by, any Governmental Entity, including Environmental Permits) from filings under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice and that the parties otherwise mutually reasonably agree are appropriate and necessary with the applicable Governmental Entities under any Governmental Authority or third party necessaryother applicable Antitrust Laws within the time periods specified thereunder (or, proper or advisable to consummate the Transactions and if such time period is not specified, within a reasonable time), (iii) executing resist, contest or defend any Action (including administrative or judicial Actions) challenging the Merger or the completion of the transactions contemplated hereby, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and delivering that could restrict, prevent or prohibit consummation of the transactions contemplated hereby, including, without limitation, by pursuing all avenues of administrative and judicial appeal, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions, in transactions contemplated hereby and fully to carry out the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date purposes of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(eb) Each of the parties hereto shall use its reasonable best efforts furnish to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority party such necessary information and reasonable assistance as such other party may reasonably request in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject foregoing. Subject to applicable Laws Law relating to the exchange of information, Parent and Company shall have the right to review in advance, and to the extent reasonably practicable, practicable each shall consult with the other parties hereto with respect to in connection with, all of the information relating to the other parties hereto and their respective SubsidiariesParent or Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third Person or party and/or any Governmental Authority Entity in connection with the Transactions, other than “Transaction-Related Documents” Merger and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of transactions contemplated by this Agreement. The Purchaser In exercising the foregoing rights, each of Parent and its Affiliates Company shall make all necessary post-Closing filings act reasonably and submissions pursuant as promptly as practicable. Subject to FERC’s rulesapplicable Law and the instructions of any Governmental Entity, Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including all applicable deadlines.
(g) In connection promptly furnishing the other with the copies of notices or other written communications received by Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq.or Parent, as amended (“ISRA”)the case may be, (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days or any of the date of this Agreementtheir respective Subsidiaries, (iii) subject to Seller’s indemnification obligations from any Governmental Entity and/or third party with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)such transactions, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliatesand, to the extent practicable under the circumstances and permitted by the Governmental Entity, shall provide the other party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby. In carrying out their obligations under ISRAthis Section 5.5, will subject to applicable Law, each of the parties shall not submit or otherwise provide a self guarantee in lieu of any information to such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with Governmental Entity without first having provided a reasonable opportunity to the other party and its counsel to review and comment upon such information. Any party may, as it deems advisable and necessary, reasonably designate any sensitive material provided to the other parties under this Section 5.5, or otherwise pursuant to this Agreement, as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to the directors, officers or employees of the recipient, unless express written permission is obtained in advance on such filings and submissions) and (y) have from the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with source of the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchasermaterials.
(hc) Notwithstanding anything in this Section 5.5 to the contrary, neither party shall be obligated or required (and shall not be obligated or required to cause any of its Subsidiaries) to agree to divest, hold separate or otherwise restrict the use or operation of any business or assets of Company or Parent or any of their respective Subsidiaries or agree to any conduct or other remedy, except to the extent any such divestiture, hold separate, restriction or conduct or other remedy would not reasonably be expected to be material to Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries (other than Company and its Subsidiaries), taken as a whole.
(d) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with obtaining any approval or consent from any Person (other than a Governmental Entity) with respect to the performance Merger, (i) without the prior written consent of their respective obligations under this Section 7.01Parent (which consent shall not be unreasonably withheld, delayed or conditioned), none of Company or any of its Subsidiaries shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation due to such Person and (ii) neither Parent nor Merger Sub shall be required to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation.
Appears in 1 contract
Efforts. (a) 5.1 Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Bidder shall (and shall cause their respective Subsidiaries to) each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable law to consummate and make effective, in effective the most expeditious manner transactions contemplated by this Agreement as promptly as practicable, including, but without prejudice to the Transactionsconfirmation and representation of the Bidder to the Company set forth in Section 2.2, including (ia) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions, notices, petitions, statementswaivers, registrations, submissions permits, authorizations, orders, consents and approvals from any governmental authority in the U.S., Belgium, Germany or otherwise (“Governmental Authority”), the expiry or early termination of informationany applicable waiting periods, applications and other documents the making of all necessary registrations and filings (including filings with respect Governmental Authorities, if any) and the taking of any and all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Permits, including Environmental Permits)Governmental Authorities, (iib) the delivery of required notices to, and the obtaining all Consents (including with respect to any Permitsof required consents or waivers from, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable parties necessary to consummate the Transactions transactions contemplated by this Agreement and (iiic) executing the execution and delivering delivery of any additional instruments necessary to consummate the Transactions, transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
5.2 In furtherance and not in limitation of the case of undertakings pursuant to this Article 5 each of clauses the Bidder and, to the extent required by applicable law, the Company shall (ia) through promptly (iii), other but in no event later than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications 10 business days after the date hereof) prepare and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) file any notification and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification report forms and Report Form pursuant to related material required under the HSR Act and other applicable U.S. or non-U. S. antitrust laws (“Antitrust Laws”) with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) transactions contemplated by this Agreement, and any required notification under any other Antitrust Laws additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, as promptly as reasonably practicable following the date of this Agreementand advisable, (and in any event with respect b) provide or cause to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply provided as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to by the U.S. Department of Justice (“DOJ”) or the U.S. Federal Trade Commission (“FTC”) under the HSR Act and such or by other Governmental Authorities under applicable Antitrust Laws (if any) and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, use its reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake take such actions as promptly as reasonably practicable commercially reasonable actions required are necessary or advisable to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer obtain prompt expiration or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships applicable waiting period or contractual rights other approval of consummation of the Transferred Entities), (ii) proffer transactions contemplated by this Agreement by the DOJ or consent to any FTC or other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that applicable Governmental Authorities. Bidder shall pay all filing fees required by any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in for filings made under this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actionssection.
(d) Nothing in this Agreement shall require any party 5.3 Subject to take or agree to take any action with respect to its business or operations unless applicable law, the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser Company and Bidder and their respective counsel shall (ia) control the strategy for obtaining any Consents from any Governmental Authority cooperate in all respects with each other in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private person, allow (b) have the other party right to review such filing, submission, or substantive written communication in advance, and consider in good faith to the views of such extent practicable each shall consult the other party with respect to such filingon, submissionany material filing made with, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party materials to be submitted to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority in connection with the transactions contemplated by this Agreement and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iiic) subject to promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Laws relating Governmental Authority and (d) promptly furnish each other with copies of all correspondence, filings and written communications between them or their subsidiaries or affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the exchange transactions contemplated by this Agreement. The Company and Bidder shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of informationand the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, Bidder shall, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, direct and control all aspects of the parties’ efforts to gain regulatory clearance either before any Governmental Authority or in any action brought to enjoin the transactions contemplated by this Agreement pursuant to any Antitrust Laws; provided, that each of the parties hereto shall have the right to review in advance, and to the extent reasonably practicable, practicable each will consult with the other parties hereto with respect to on, all the information relating to the other parties hereto and their respective Subsidiariessubsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any third Person or party and/or any Governmental Authority in connection with the Transactionsany governmental inquiry, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) investigation or proceeding with respect to the extent permitted transactions contemplated by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser Company and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq.Bidder may, as amended (“ISRA”)each deems advisable and necessary, (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to reasonably designate any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, competitively sensitive material provided to the extent permitted other under ISRA, will provide a self guarantee in lieu of such required source or assurance) this Article 5 as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser“Antitrust Counsel Only Material.
(h) ” Notwithstanding anything to the contrary in this AgreementArticle 5, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company.
5.4 Notwithstanding the undertakings of Bidder pursuant to Section 5.1 through Section 5.3, in no event shall anything in this Agreement require, or be construed to require, the Seller and its Affiliates shall have no obligation to pay money Company, Bidder or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01affiliates to take, or agree to take, any action that would, individually or in the aggregate, result in a material adverse effect on the business, results of operations, assets or financial condition of the Company and its subsidiary, taken as a whole or Bidder and its subsidiaries, taken as a whole (which shall exclude Company and its subsidiary); provided that for purposes of determining whether a material adverse effect shall have occurred such effect shall be measured relative to the size of the Company and its subsidiary, taken as a whole.
Appears in 1 contract
Sources: Heads of Agreement (Sanofi)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller Parties hereto shall use their respective commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws and otherwise to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate complete and make effectiveeffective the Merger and the other transactions contemplated by this Agreement, in the most expeditious manner practicable, the Transactions, including including: (i) preparing and filing promptly and fully all documentation to effect obtaining all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Specified Approvals and the Purchaser Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all Consents necessary consents, approvals or waivers from third parties, (including with respect to iii) defending any Permitslawsuits or other legal proceedings, including Environmental Permits) from any Governmental Authority whether judicial or third party necessaryadministrative, proper challenging this Agreement or advisable to consummate the Transactions completion of the Merger and the other transactions contemplated by this Agreement, and (iiiiv) executing and delivering any additional instruments necessary to consummate complete the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)transactions contemplated by this Agreement.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company, Purchaser and Merger Sub shall: (i) make an appropriate filing of a promptly file any and all required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions Merger and the other transactions contemplated by this Agreement (which or, if such Party has an “ultimate parent entity”, then such Party shall request cause that entity to make that filing), and use all reasonable efforts to cause the early expiration or termination of any applicable waiting period applicable to the Transactions periods under the HSR Act, (ii) use (and cause each of its Affiliates to use) commercially reasonable efforts to cooperate in (A) determining whether any filings are required notification under to be made with, or consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Antitrust Laws Governmental Entities in connection with the execution and delivery of this Agreement and the completion of the transactions contemplated hereby, and (B) timely making all such filings and timely obtaining all such consents, permits, authorizations and approvals, (iii) supply to any Governmental Entity as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) use commercially reasonable efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things reasonably necessary, proper or advisable to complete and make effective the HSR Act transactions contemplated hereby, including taking (and causing each of its Affiliates to take) all such other Antitrust Laws and to promptly take any and all steps further actions as may be reasonably necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign Governmental Entity or U.S. federal, state or local Governmental Authority, in each case other Person with competent jurisdiction respect to the Merger so as to enable the parties hereto Merger to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior to event, no later than the Termination End Date).
(c) Without limiting Subject to applicable legal limitations and the foregoinginstructions of any Governmental Entity, the Company and Purchaser and shall keep each other apprised of the Seller shallstatus of matters relating to the completion of the Merger, and shall cause including promptly delivering the other with copies of notices or other communications received by the Company or Purchaser, as the case may be, or any of their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale Subsidiaries or other dispositionAffiliates, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that from any Governmental Authority may have Entity or other Person with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closingtransactions. The Company and Purchaser shall (i) control the strategy AGREEMENT AND PLAN OF MERGER 44 permit counsel for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its Party reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed Party in all material respects and on a reasonably timely basis of connection with, any material proposed written communication received by such party from, or given by such party to, the Antitrust Division to any Governmental Entity. Each of the Department of Justice (the “DOJ”)Company and Purchaser agrees not to participate in any substantive meeting or discussion, the Federal Trade Commission (the “FTC”)either in person or by telephone, FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the TransactionsMerger unless it consults with the other Party in advance and, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and Party the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(fd) Purchaser agrees to, and will cause its Affiliates to, use commercially reasonable efforts to take any and all actions reasonably necessary to avoid, eliminate and resolve any and all impediments under the HSR Act or any other Law that may be asserted by any Governmental Entity or any other Person with respect to the Merger and to obtain all consents, approvals and waivers under the HSR Act or any other Law that may be required by any Governmental Entity to enable the Parties to close the Merger as promptly as practicable.
(e) In furtherance and not in limitation of the obligations set forth covenants of the Parties contained in Section 7.01(a) and otherwise subject to the terms of this Section 7.017.6, if any action or proceeding is instituted (or threatened) challenging the Seller and Merger as violating the Purchaser shall use their respective reasonable best efforts HSR Act or any other Law or if any decree, order, judgment or injunction (whether temporary, preliminary or permanent) is entered, enforced or attempted to obtain approval from FERC pursuant to Section 203 of be entered or enforced by any Governmental Entity that would make the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, Merger illegal or consenting to, FPA Section 203-related applications otherwise delay or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and prohibit the consummation of the Transactions will requireMerger, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and Purchaser and their respective Affiliates shall take any and all commercially reasonable actions to contest and defend any such Claim, to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded or terminated, any decree, order, judgment or injunction (Bwhether temporary, preliminary or permanent) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the that prohibits, prevents or restricts consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserMerger.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Avista Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable under Applicable Laws and regulations or otherwise to consummate and make effective, in effective the most expeditious manner Transactions as promptly as practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or non-actions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, applications and other documents clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, including, without limitation, in connection with any Regulatory Law (including with respect to any Permitsall of the foregoing, including Environmental Permitscollectively, the “Governmental Consents”), (ii) the delivery of required notices to, and the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing and delivering the defending of any additional instruments necessary to consummate lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions; provided that in no event shall the Company or any of the Company Subsidiaries be required to pay prior to the Closing any fee, in penalty or other consideration to any third party for any consent or approval required for the case consummation of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Transactions under any contract or agreement.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall cooperate with each other in (i) make an appropriate filing of a Notification determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or its Subsidiaries are operating any business) and Report Form pursuant (ii) to the HSR Act with respect extent not made prior to the Transactions (which shall request date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws Company as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that Business Days after the obligation date hereof with respect to make such filings or submissions required under the HSR Act). The filing fee required under the HSR Act shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) paid by Parent. Each party shall supply as promptly as reasonably practicable any additional information and documentary such information, documentation, other material or testimony that may be requested pursuant by any Governmental Authority, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act Act, any other Governmental Consent and any such other Antitrust Applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the FTC or the DOJ, or any other Governmental Authority in connection with such applications or filings or the Transactions. Without limiting the foregoing, Parent, Merger Sub and to promptly their respective Affiliates shall not take any action with the intent of extending any waiting period or comparable period under any the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the Company.
(c) Without limiting any of its other obligations hereunder, Parent and Merger Sub shall take all steps such further action as may be necessary to resolve such objections, if any, as the FTC, the Antitrust Division of the DOJ, state antitrust enforcement authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other Person, may assert under any Applicable Law with respect to the transactions contemplated herein, and to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Applicable Law that may be required asserted by any foreign or U.S. federal, state or local Governmental AuthorityPerson with respect to the Merger, in each case with competent jurisdiction so as to enable the parties hereto to consummate Merger and the Transactions to occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date), including by proposing, negotiating, committing to and effecting, by agreement, consent decree, hold separate order, trust or otherwise, (x) the Termination Date.
sale, divestiture or disposition of such assets, businesses, services, products or product lines of Parent or the Company (cor any of their respective Subsidiaries or Affiliates) Without limiting or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Parent or the foregoingCompany (or any of their respective Subsidiaries or Affiliates), (y) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or Affiliates and (z) any other actions that would limit the freedom of action of Parent, the Purchaser and the Seller shall, and shall cause Company or any of their respective Subsidiaries or Affiliates with respect to, or its ability to useretain, reasonable best efforts one or more of its or its Subsidiaries’ (including the Company’s or the Surviving Corporation’s) or Affiliates’ assets, businesses, services, products or product lines, in each case as may be required in order to cooperate in good faith with obtain all applicable required Governmental Authorities and undertake Consents as promptly as reasonably practicable commercially reasonable actions (including expirations or terminations of waiting periods whether imposed by Applicable Law or agreement) and to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing the consummation of the Merger or the transactions contemplated by this Agreement or delaying any of the foregoing beyond the End Date (each of (x), (y) and (z), a “Divestiture Action”). Neither the Company nor any of its Subsidiaries shall, without Parent’s prior written consent, and neither Parent nor any of its Subsidiaries shall, without the Company’s prior written consent, discuss or commit to any extension of any waiting period under any Applicable Law or any agreement not to consummate the Merger or any of the other transactions contemplated by this Agreement. None of Parent, Merger Sub or the Company shall be required to complete lawfully any Divestiture Action pursuant to this Section 6.10 unless it is expressly conditioned on the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business effectiveness of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholeMerger. For the avoidance of doubt and notwithstanding Notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement6.10(c), neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) Parent and Merger Sub shall not be required obligated to sellpropose, divestnegotiate, dispose of or enter into any other arrangementscommit to and effect, or take any other Antitrust Remedial Action with respect otherwise agree to, their businessesby agreement, product linesconsent decree, hold separate order, trust or otherwise (i) to any Divestiture Action which is not limited to the assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking Company and its Subsidiaries and (ii) to any Divestiture Action involving the assets of the Antitrust Remedial Actionsmerchant Acquiring business of the Company and its Subsidiaries.
(d) Nothing in this Agreement shall require any party Without limiting the foregoing and subject to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken applicable legal limitations and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and instructions of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to Company and Parent agrees (i) to cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating material actions pursuant to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationthis Section 6.10, (ii) keep to furnish to the other parties hereto informed such necessary information and assistance as the other may reasonably request in all material respects and on a reasonably timely basis connection with its preparation of any material communication notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other third party and/or any Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of respect to the Transactions, (iiiiv) subject to applicable Laws relating permit the other party to the exchange of information, review and to the extent reasonably practicable, consult with incorporate the other parties hereto party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to information relating obtaining the necessary approvals for the Transactions, and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or transactions contemplated herein with any Governmental Authority in connection with the TransactionsTransactions unless, to the extent not prohibited by such Governmental Authority, it gives the other than party reasonable notice thereof and the opportunity to attend and observe. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.10 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.10(d) as “Transaction-Related DocumentsAntitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(e) For purposes of this Agreement, “Plans and ReportsRegulatory Law” as those terms are used in means the rules and regulations under ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, and (iv) to the extent permitted by the FTCFTC Act, the DOJEC Merger Regulation, FERC or such and all other applicable Governmental Authority federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other PersonApplicable Laws, give including, without limitation, any applicable antitrust, competition or trade regulation Applicable Laws, that are designed or intended to prohibit, restrict or regulate actions having the other parties hereto prompt notice of, purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and the reasonable opportunity including any Applicable Laws that relate to attend and participate in, substantive meetings and conferencesforeign investments.
(f) In furtherance of During the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval period from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, except as required by this Agreement, Parent, Merger Sub and their Affiliates shall not engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would materially impair or delay Parent or Merger Sub’s ability to consummate the Transactions or perform their obligations under this Agreement. The Purchaser and its Without limiting the generality of the foregoing, none of Parent, Merger Sub or any of their Affiliates shall make all necessary post-Closing filings and submissions pursuant acquire (whether by merger, consolidation, stock or asset purchase or otherwise), or agree to FERC’s rulesso acquire, including all applicable deadlines.
(g) In connection with the Company Sites located any amounts of assets of or any equity in Pedricktownany other Person or any business or division thereof, New Jersey, unless that acquisition or agreement would not reasonably be expected to (i) increase the parties acknowledge that risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the execution of transactions contemplated by this Agreement and or the expiration or termination of any waiting period under the HSR Act or (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of transactions contemplated by this Agreement, (iii) subject or increase the risk of not being able to Seller’s indemnification obligations with respect to remove any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance order on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial appeal or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) 6.9.1 Subject to the terms and conditions of this Agreement, each of the Purchaser Parties shall cooperate with each other and the Seller each use (and shall use cause their respective Subsidiaries to use) their reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties Party in doing, all things reasonably necessary under Applicable Law to consummate the Merger as promptly as practicable, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties, and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Company paying, any material cash consideration to any Third Party from whom consent or approval is required (other than filing fees payable to Governmental Entities).
6.9.2 In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) promptly and in any event within 30 Business Days of the date hereof prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary, proper or advisable to cause the conditions to the Closing to be satisfied obtain SARB Approval, (ii) (A) submit, as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each event within 30 Business Days of the parties hereto agrees date hereof, to (i) make an appropriate filing of CFIUS a Notification and Report Form pursuant to the HSR Act draft joint voluntary notice under Exon-▇▇▇▇▇▇ with respect to the Transactions Merger, (which shall request the early termination of any waiting period applicable to the Transactions under the HSR ActB) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementthereafter, (and in any event file with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on CFIUS a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)final joint voluntary notice, and (iiC) supply as promptly as reasonably practicable any additional information and documentary information or material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that CFIUS review process within the Purchaser shall consult in good faith with the Seller regarding such strategyamount of time allowed by CFIUS, and (iiiii) coordinate cooperate with the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority other Parties in connection with the Transactions any such filings or notifications, and in connection with resolving any investigation or other inquiry of any Governmental Entity in relation to such filings or litigation by notifications, including the U.S. Department of Justice or before, or any negotiations with, a Governmental Authority the U.S. Federal Trade Commission under the HSR Act.
6.9.3 Subject to Applicable Law relating to the Transactions exchange of information, the Company and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller Parent and their respective counsel shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with determining whether any filingaction by or in respect of, submission or substantive written communication with a filing with, any Governmental Authority Entity is required, in connection with the Transactions consummation of the Merger and seeking any such actions, consents, approvals or waivers or making any such filings, (ii) furnish to each other all information required for any application or other filing under the rules and regulations of any Applicable Law in connection with any investigation or the transactions contemplated by this Agreement (including in connection with CFIUS Clearance), (iii) provide each other inquiry by or before with a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party reasonable advance opportunity to review such filing, submission, or substantive written communication in advance, and comment upon and consider in good faith the views of such the other party in connection with respect all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to such filing, submission, proceedings under the HSR Act or substantive written communicationin connection with CFIUS Clearance) with a Governmental Entity in connection with the transactions contemplated hereby, (iiiv) keep the promptly inform each other parties hereto informed in all material respects and on a reasonably timely basis of any material communication (or other material correspondence or memoranda) received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Acttransactions contemplated hereby, and (ivv) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent permitted by practicable, provide the FTCother Party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, the DOJ, FERC or such other applicable Governmental Authority investigation or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth inquiry in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located transactions contemplated hereby (including in Pedricktownconnection with CFIUS Clearance).
6.9.4 Notwithstanding anything else contained herein, New Jersey, (i) the parties acknowledge that the execution of this Agreement Parent and the consummation of the Transactions will requireits Subsidiaries shall take, and the parties shall reasonably cooperate cause to be taken, all steps necessary to avoid or eliminate any impediment under Applicable Law that may be asserted by a Governmental Entity with respect to, compliance with and to satisfy all conditions to the New Jersey Industrial Site Recovery Actconsummation of, N.J.S.A. 13:1K-6 et seq.the Merger; provided, however, that neither Parent nor any of its Subsidiaries shall be required to, and the regulations promulgated pursuant theretoCompany shall not, N.J.A.C. 7:26B 1.1 et seq.without the prior written consent of Parent, as amended (x) in connection with efforts to obtain the expiry or early termination of any applicable waiting period (or any extensions thereof) under the HSR Act or to obtain SARB Approval, offer, propose, agree or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire or otherwise dispose of (A) any of the respective Affiliates of the Company or Parent or (B) any of the respective operations, divisions, businesses, products, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates (a “ISRADivestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Seller shall complete and file Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products, customers, assets, properties or rights, including, in the case of Parent, the right to own or operate any portion of the businesses of the Company or any of its Subsidiaries or Affiliates (a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA FilingRestraint”) within five days of the date of this Agreement), or (iii) subject to Seller’s indemnification obligations enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint or (y) in connection with respect efforts to obtain CFIUS Clearance, agree or consent to any Non-Legacy Environmental Liabilities under Section 10.02(b)condition, agreement, order or burden in order to obtain CFIUS Clearance that would (i) prevent Parent from appointing, removing and controlling, at its sole discretion, all of the directors of the Surviving Corporation, (Aii) restrict Parent from receiving information concerning the “General Information Notice” shall identify operations, finances, sales and be executed by customers of the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions Surviving Corporation necessary to comply with ISRA allow Parent to direct, operate and control the Surviving Corporation as its Subsidiary, or (as iii) cause Parent’s control or ownership of the Surviving Corporation and its Subsidiaries to be passive or to otherwise restrict in any material respect the ability of Parent to control and operate the Surviving Corporation and its Subsidiaries or their respective businesses; provided, however, that the limitations on efforts in this Section 6.9.4(y)(i-iii) shall not affect Parent’s efforts obligations to the extent any restrictions proposed by CFIUS solely relate to the transmission of information to, or management of the Surviving Corporation by, any shareholder of Parent’s ordinary shares or representatives (including board representatives) of any such shareholder. Nothing in this Section 6.9.4 shall require Parent or its Subsidiaries to contest or resist any Proceeding commenced by a result of this Agreement Governmental Entity or to have vacated, lifted, reversed or overturned any Order entered in any such Proceeding, whether temporary, preliminary or permanent, that is in effect and the that prohibits, prevents or restricts consummation of the Transactions), including causing Merger.
6.9.5 Subject to the Company proviso to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the PurchaserSection 6.9.1, the Company shall use its reasonable best efforts to take, or its Affiliatescause to be taken, all reasonable actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the extent permitted under ISRAconsents reasonably requested by Parent; provided that the Company shall not take any action to solicit or obtain such consents unless and until the Company or the Company’s counsel is directed to do so by Parent or Parent’s counsel and then only upon the basis so requested, no such action will provide a self guarantee in lieu of such be required source or assurance) as necessary to consummate that is not conditioned on the Transactions (Closing and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary nothing in this Agreement, Section 6.9.5 will affect the Seller Parties’ relative rights and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01Article 7.
Appears in 1 contract
Efforts. (a) Subject Each of the parties agrees to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause consummate the conditions to the Closing to be satisfied transactions contemplated by this Agreement as promptly as practicable, including (x) preparing and filing as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, noticesconsents, petitionswaivers, statementsclearances, registrationsapprovals, submissions of informationauthorizations, applications and other documents (including with respect to any Permits, including Environmental Permits)permits or orders from all Governmental Entities, (iiy) obtaining seeking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper necessary or advisable consents of third parties to consummate the Transactions transactions contemplated hereby and (iiiz) executing using reasonable best efforts to cause the satisfaction, but not waiver, of the conditions to closing of the other party or parties set forth in Article VIII. In furtherance and delivering any additional instruments necessary to consummate not in limitation of the Transactionsforegoing, in the case of each of clauses party hereto agrees (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating make or cause to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated by this Agreement as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect within five (5) Business Days) after the date hereof and to filings made pursuant request and use reasonable best efforts to obtain early termination of the waiting period under the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and Act; (ii) to make, or cause to be made, a filing of the short form notification referred to in subsection 123(1) of the Competition Act as promptly as practicable (and in any event within five (5) Business Days) after the date hereof; and (iii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act or the Competition Act.
(b) Further, and without limiting the generality of the rest of this Section 5.3, each of the parties shall cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry and shall promptly (i) furnish to the other such necessary information and reasonable assistance as the other parties may request in connection with the foregoing, (ii) inform the other of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement, and (iii) provide counsel for the other parties with copies of all filings made by such party, and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Subsidiaries to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the Transferred Companies, (y) as necessary to comply with contractual arrangements and (z) to remove information concerning Affiliates of Purchaser. Each party hereto shall, subject to applicable Law, permit counsel for the other Antitrust Laws parties to review in advance, and consider in good faith the views of the other parties in connection with, any proposed written communication to promptly any Governmental Entity in connection with the transactions contemplated by this Agreement. The parties agree not to participate, or to permit their Subsidiaries to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other parties the opportunity to attend and participate.
(c) Further, and without limiting the generality of the rest of this Section 5.3, Purchaser shall take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws antitrust, competition, or trade regulation or other Law that may be asserted by any Governmental Entity or private party with respect to this Agreement so as to make effective as promptly as practicable the transactions contemplated by this Agreement and to avoid any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing beyond the Outside Date. The steps involved in the preceding sentence shall include, without limitation, (i) defending through litigation on the merits, including appeals, any claim asserted in any court or other proceeding by any party; (ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Purchaser (including its Subsidiaries and Affiliates) or the Transferred Companies, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture or disposition of such assets or businesses; (iii) agreeing to any limitation on the conduct of Purchaser (including its Subsidiaries and Affiliates) or the Transferred Companies; or (iv) agreeing to take any other action as may be required by a Governmental Entity in order (A) to obtain all necessary consents, approvals and authorizations as soon as reasonably possible, and in any foreign event before the Outside Date, (B) to avoid the entry of, or U.S. federalto have vacated, state lifted, dissolved, reversed or local Governmental Authorityoverturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect in any Action and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, or (C) to effect the expiration or termination of any waiting period, which would otherwise have the effect of preventing or delaying the Closing beyond the Outside Date. At the request of Purchaser, Sellers shall agree to take, or cause the Transferred Companies to take, in Seller’s sole discretion, any action with respect to the Transferred Companies or any of their Subsidiaries in the two preceding sentences, provided that any such action is conditioned upon (and shall not be completed prior to) the consummation of the transactions contemplated by this Agreement. Each of Parent and Purchaser shall not, and shall cause each case with competent jurisdiction so as of its Subsidiaries and Affiliates not to, take any action which is intended to enable or which would reasonably be expected to adversely affect the ability of any of the parties hereto to consummate obtain (or cause delay in obtaining) any necessary approvals of any Governmental Entity required for the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in transactions contemplated by this Agreement, the Purchaser (to perform its covenants and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of agreements under this Agreement, neither or to consummate the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of transactions contemplated by this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing Purchaser shall use its reasonable best efforts to obtain the proceeds of the Financing on the terms and conditions described in this Agreement shall require the Commitment Letters (or, at Purchaser’s option, on other terms, not imposing any party additional conditions precedent to take or agree the initial funding of the Debt Financing and not otherwise reasonably likely to take cause any action material delay in the initial funding of the Debt Financing), including using reasonable best efforts to (i) negotiate definitive agreements with respect to its business the Debt Financing consistent with the terms and conditions contained in the Debt Commitment Letter, (ii) satisfy on a timely basis (or operations unless obtain the effectiveness of waiver of) all conditions applicable to Purchaser in such agreement or action is conditioned upon the Closing. The Purchaser shall definitive agreements and (iiii) control the strategy for obtaining any Consents from any Governmental Authority cooperate with Parent in connection with the Transactions; provided that preparation and delivery of the Required Information by July 16, 2007. Purchaser shall consult in good faith use its reasonable best efforts to comply with the Seller regarding such strategyits obligations, and enforce its rights, under the Commitment Letters. In the event that (iix) coordinate the overall development all or any portion of the positions Debt Financing structured as high yield financing has not been consummated on or before the date on which Closing is required to occur in accordance with Section 2.3, (y) all conditions to the obligations of the parties to close contained in Sections 8.1 and 8.2 have been satisfied or waived (other than those conditions that by their nature are to be taken satisfied at Closing) and (z) the regulatory actions bridge facilities contemplated by the Debt Commitment Letter are available on the terms and conditions described in the Debt Commitment Letter, Purchaser shall draw down on such bridge facilities to be requested in replace the high yield financing or portion thereof that has not been consummated no later than the time Purchaser is obligated to close pursuant to the terms hereof. Purchaser shall give Parent prompt notice of any filing or submission with a Governmental Authority in connection with breach by any party to the Transactions and in connection with any investigation or other inquiry or litigation by or before, Commitment Letters of which Purchaser has become aware or any negotiations with, a Governmental Authority relating to purported termination of the Transactions and of all other regulatory matters incidental theretoCommitment Letters. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authoritynot, without the prior written consent of Parent, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the other party.
Commitment Letters if such amendment, modification, waiver or remedy adds new (eor adversely modifies any existing) Each conditions to the consummation of the parties hereto shall Financing or reduces the amount thereof, or (y) terminate or permit termination of any of the Commitment Letters. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letters, regardless of the reason therefor, Purchaser will (i) use its reasonable best efforts to obtain alternative debt financing (iin an amount sufficient, when taken together with the proceeds from the Cash Equity, to pay the Purchase Price including any adjustments thereto) cooperate on terms no less favorable than those in the Debt Commitment Letters, including from other sources, and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions precedent to the Debt Financing set forth in the Debt Commitment Letters, and (ii) promptly notify Parent of such unavailability and the reason therefor. In addition, notwithstanding anything in this Agreement to the contrary, one or more Commitment Letters may be superseded at the option of Purchaser after the date of this Agreement but prior to the Closing Date by instruments (the “New Financing Commitments”) that replace existing Commitment Letters, provided that the terms of the New Financing Commitments shall not (A) expand upon the conditions to the Closing Date drawdown to the Debt Financing as set forth in the Commitment Letters in any material respect, (B) reduce the amount of the Debt Financing, or (C) reasonably be expected to delay the Closing. In such event, the term “Commitment Letters” as used herein shall be deemed to include the Commitment Letters that are not so superseded at the time in question and the New Financing Commitments to the extent then in effect. Notwithstanding the foregoing, compliance by Purchaser with this Section 5.3(d) shall not relieve Purchaser of its obligation to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(e) Parent shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Transferred Companies and their Subsidiaries to, cause the respective officers, employees, and advisors, including legal and accounting, of Parent and the Transferred Companies and their Subsidiaries to, provide to Purchaser all respects cooperation, on a timely basis, reasonably requested by Purchaser that is reasonably necessary and customary in connection with each the Financing (provided that such requested cooperation shall not unreasonably interfere with the operation of the Business or Parent’s or its Subsidiaries’ other businesses), including:
(1) causing senior management and other appropriate employees of the Business (A) upon reasonable advance notice by Purchaser and on a reasonable number of occasions, to be available on a customary basis for meetings, including management and other presentations and “road show” appearances, rating agency presentations, participation in due diligence sessions, and the preparation of disclosure documents in connection with any filing, submission or substantive written communication with a Governmental Authority in connection such financing and (B) to provide reasonable and customary management and legal representations to auditors and reasonable and timely assistance with the Transactions preparation of business projections and similar materials, provided that any private placement memoranda in connection with relation to high-yield debt securities need not be issued by any investigation Transferred Company or other inquiry by any of its Subsidiaries, provided further that any such memoranda or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, prospectuses shall contain disclosure and consider in good faith the views of such other party financial statements with respect to such filingthe Transferred Companies and their Subsidiaries;
(2) providing reasonable assistance in the timely preparation of offering memoranda, submissionprospectuses, rating agency, lender and investor presentations, syndication or substantive written communicationinformation memoranda, (ii) keep the marketing materials and other parties hereto informed similar documents, if applicable, including but not limited to causing management and other personnel to participate in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party torelated drafting sessions; provided that Parent, the Antitrust Division Transferred Companies, their Subsidiaries and their respective officers, employees and advisers shall only be required to provide such assistance with respect to preparation of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC a prospectus or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and offering memorandum to the extent reasonably practicable, consult such prospectus or offering memorandum is prepared in accordance with customary practices for an offering of debt securities made pursuant to Rule 144A under the Securities Act and consistent with the other parties hereto with respect requirements of the Securities Act for such an offering pursuant to information relating to the other parties hereto and their respective SubsidiariesRule 144A, as the customarily applied to such an offering (but in no case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, shall Parent be required to provide financial statements other than “Transaction-Related Documents” those provided under Section 3.6(a) of this Agreement and “Plans and Reports” as those terms are used in the rules and regulations required to be provided under the HSR Act, and clause (iv3) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.015.3(e));
(3) timely furnishing such financial and other information regarding the Business as shall exist or become available (or if not existing, the Seller and the Purchaser shall use their respective using its reasonable best efforts to obtain approval from FERC prepare such financial or other information) as may be reasonably requested by Purchaser, and in any event including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent registered public accountants of Parent as provided in Statement on Audited Standards No. 100) and all appropriate pro forma financial statements, prepared in accordance with GAAP, and all other data and information (including management’s discussion and analysis of financial condition and results of operations, and, with respect to any audited financial statements, the auditors’ report thereon), of the type required by Regulation S-X and Regulation S-K under the Securities Act (excluding information required by Rule 3-10 of Regulation S-X other than basic narrative information) or of the type and form that would customarily be provided in a private placement of debt securities pursuant to Section 203 Rule 144A under the Securities Act, to consummate any offering of securities contemplated by the Debt Commitment Letter (or any alternative financing) at the time during the fiscal year of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in Business that such efforts, including the execution ofoffering will be made, or consenting tothat would be necessary to receive customary “comfort” (including without limitation “negative assurance” comfort) from independent registered public accountants in connection therewith (such information, FPA Section 203-related applications together with any replacements or submissions restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purpose and, in the case of annual financial statements, the auditors’ report thereon, and customary auditor comfort letters with FERCrespect to all such information, including any inquiries from staff, which applications or submissions shall be made as soon as practicablethe “Required Information”), but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and shall Parent or its Affiliates shall make all necessary post-Closing filings and submissions pursuant Subsidiaries be required to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations furnish audited or unaudited financial statements with respect to any Non-Legacy Environmental Liabilities under Section 10.02(bperiod prior to the fiscal year ended January 29, 2006 (other than unaudited selected financial data for 2002, 2003 and 2004);
(4) obtaining consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters and legal opinions, as reasonably requested by Purchaser;
(5) taking all actions reasonably necessary to (A) permit prospective financing providers involved in the “General Information Notice” shall identify Debt Financing to evaluate the Business’s current assets, cash management and be executed by accounting systems, policies and procedures relating thereto for the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.purpo
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties hereto and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing execute and delivering deliver any additional instruments necessary to consummate the Transactions, other than, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Laws, which are dealt with addressed in Section 7.01(b5.03(c) below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration in any form (including increased rent or other similar payments or commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (cincluding a guaranty) and or otherwise assume or incur or agree to assume or incur any liability, to obtain any consent of any Person (d)other than any Governmental Authority) under any Contract.
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) Transactions, as soon as practicable and any required notification under any other Antitrust Laws as promptly as reasonably practicable following advisable after the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary Act. Further, each party hereto shall use its reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents consents under any such Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental AuthorityAuthority pursuant thereto, in each case with competent jurisdiction jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Outside Date.
(c) Without limiting . The Company shall not, without the foregoingexpress written consent of Parent, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action relating to any objections asserted by any Governmental Authority with respect to the Transactions under any Antitrust Laws with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closingoperations. The Purchaser Parent shall (ix) control the strategy for obtaining any Consents approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, Transactions and (iiy) coordinate control the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither ; provided that Parent shall consult and cooperate with the Purchaser nor Company with respect to such strategy, positions and requested regulatory action and consider the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other partyCompany’s views in good faith.
(ed) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiarieshereto, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents4(c) documents” and “Plans and Reports4(d) documents” as those these terms are used in the rules and regulations under the HSR Act. To the extent reasonably practicable, all telephone calls and meetings with a Governmental Authority regarding the Transactions shall include representatives of Parent and the Company, and (iv) each party hereto must inform the other of any material communications with a Governmental Authority relating to any Antitrust Laws. Except as otherwise restricted by this Section 5.03(d), Parent and the Company or their outside counsel shall have the right to review in advance all written materials submitted or communications made to any Governmental Authority in connection with the Transactions, in each case to the extent permitted by the FTC, the DOJ, FERC such materials or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity communications are related to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject any Antitrust Laws; provided that that materials required to the terms of be provided pursuant to this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall 5.03(d) may be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), redacted (A) to remove references concerning the “General Information Notice” shall identify and be executed by valuation of the Company as the responsible party and Company, (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions as necessary to comply with ISRA contractual arrangements, (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assuranceC) as necessary to consummate the Transactions (and provide Purchaser comply with a reasonable opportunity to review and comment in advance on such filings and submissions) applicable Law, and (yD) have the right as necessary to manage and control address reasonable privilege or confidentiality concerns; provided, further that a party may reasonably designate any Remedial Action with respect competitively sensitive material provided to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of another party under this Section 10.05(c5.03(d) and using a licensed site remediation professional reasonably acceptable to Purchaseras “Outside Counsel Only”.
(he) Notwithstanding anything to the contrary contained in this Agreement, the Seller and (i) neither Parent nor its Affiliates shall have no obligation be required (and the Company shall not agree to pay money or offer or make any concession or grant any accommodation of the following without the express written consent of Parent): (financial or otherwiseA) to offer, agree or consent to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any Governmental Authority assets, licenses, operations, rights, product lines, businesses or other third party in connection with interest therein of Parent or the performance Company or any of their respective obligations under this Section 7.01Affiliates; (B) to offer, agree or consent to any changes (including through a licensing arrangement) to or restriction on (including any access or other requirements), or other impairment of Parent’s ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests or Parent’s ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the equity securities or other ownership interests of the Company; or (C) to contest, defend or appeal any Action brought by a Governmental Authority against such party which seeks to prohibit, prevent or restrict the Transactions or (ii) to commit to or effect any action that is not conditioned upon consummation of the Merger.
Appears in 1 contract
Sources: Merger Agreement (Soliton, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller shall cause its Subsidiaries to, use their respective its reasonable best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or to cause to be taken, all actions, and doto do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effectiveeffective the Merger and the other transactions contemplated hereby, in the most expeditious manner practicable, the Transactions, including including
(i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties, (including with respect iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any Permits, including Environmental Permits) from any Governmental Authority or third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions Merger and (iii) executing and delivering any additional instruments the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case Antitrust Division of each the United States Department of clauses (i) through (iii)Justice, state or foreign antitrust enforcement authorities or competition authorities, other than Governmental Entities in connection with respect to filingsthe Specified Regulatory Clearances, notices, petitions, statements, registrations, submissions or other state or federal regulatory authorities of information, applications and any other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), nation or other jurisdiction or any other person may assert under Regulatory Law (cas hereinafter defined) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date (as hereinafter defined)), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Termination Datecompletion of the transactions contemplated by this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity with respect thereto.
(c) Without limiting the foregoing, the Purchaser and the Seller shallSubject to Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, each of the Company and Parent shall cause cooperate in all respects with each other and shall use their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities contest and undertake as promptly as reasonably practicable commercially reasonable actions required resist any such action or proceeding and to complete lawfully the Transactions prior to the Termination Datehave vacated, providedlifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that notwithstanding anything to the contrary is in this Agreementeffect and that prohibits, the Purchaser (and its Affiliates) shall not be required to (i) proffer prevents or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business restricts consummation of the Transferred Entities (including the termination of any existing relationships Merger or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in transactions contemplated hereby. Notwithstanding the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) nothing in this Section 5.6 shall be required limit a party's right to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions5.6.
(d) Nothing in For purposes of this Agreement shall require Agreement, "Regulatory Law" means any party to take and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or agree to take any action with respect to its business the consent or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from approval of, any Governmental Authority Entity, or that otherwise may cause any restriction, in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken Merger and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforetransactions contemplated thereby, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to including (i) cooperate in the Sherman Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, ▇▇▇ ▇▇deral Trade Commis▇▇▇▇ ▇▇t of 1914 and all respects with each other in connection with any filingLaws that are designed or intended to prohibit, submission restrict or substantive written communication with a Governmental Authority in connection with regulate actions having the Transactions and in connection with any investigation purpose or other inquiry by effect of monopolization or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, restraint of trade or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, lessening competition through merger or substantive written communicationacquisition, (ii) keep any Law governing the other parties hereto informed in all material respects and on a reasonably timely basis direct or indirect ownership or control of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, operations or assets of the Company and its Subsidiaries or (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult any Law with the other parties hereto with respect to information relating to purpose of protecting the other parties hereto and their respective Subsidiaries, as national security or the case may be, that appears in national economy of any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferencesnation.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Crane James R)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and Transactions, (iii) executing and delivering any additional instruments necessary to consummate the Transactions and (iv) defending or contesting in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to (A) Antitrust Laws, which are dealt with in Section Sections 7.01(b), ) and (c) and (d)B) Transferred Assets, which are dealt with in Section 2.04.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten fifteen (1015) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown Business Days following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions prior to the Termination Date. Without limiting the foregoing, Purchaser shall promptly take, or cause to be taken, any and all actions necessary to secure the expiration or termination of any applicable waiting period under the HSR Act (“HSR Approval”) or any other Antitrust Law or any other Consent under Antitrust Laws, and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets used in or businesses of the Purchaser U.S. Business (including, after the Closing, any Transferred Assets), (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets used in or businesses of the Purchaser U.S. Business (including, after the Closing, any Transferred Assets), (D) terminating existing relationships, contractual rights or obligations of Purchaser or any of its Affiliates, (E) terminating any joint venture or other arrangement or (F) creating any relationship, contractual right or obligation of Purchaser or any of its Affiliates (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of actions by or with respect to the Seller, by consenting to such action by the Seller (including any Consents required under this Agreement or the other Transaction Documents with respect to such action); provided that any such action may, at the discretion of the Seller, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in a court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. All such efforts shall be unconditional and shall not be qualified in any manner and no actions taken pursuant to this Section 7.01 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Purchaser will not withdraw its initial filing pursuant to the HSR Act or any other Antitrust Law, as the case may be, and refile any of them, unless the Seller has consented in advance to such withdrawal and refiling (which consent shall not be unreasonably withheld, conditioned or delayed), in which case such refiling shall be made promptly. Purchaser shall respond to and seek to resolve as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that objections asserted by any Governmental Authority may have with respect to the Transactions (Transactions. The Seller and Purchaser and any of their respective Affiliates shall not take any action with the actions described in the foregoing clause (i)intention to, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not could reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets hinder or operations pursuant to this Section 7.01 delay the expiration or termination of any other provision of this Agreement, and waiting period under the “reasonable best efforts” HSR Act or the obtaining of the Seller shall not include taking any approval of the Antitrust Remedial Actions.
(d) DOJ or FTC as necessary. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser and the Seller shall jointly, and on an equal basis (ix) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, Transactions and (iiy) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(ec) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and allow the other party to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views of such the other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”), FERC DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports4(c) documents” as those terms are that term is used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive such meetings and conferences.
(fd) Notwithstanding anything to the contrary in Section 2.04, Purchaser and the members of the Seller Group shall cooperate and shall cause their Affiliates to cooperate using their respective commercially reasonable efforts to transfer, obtain, or to cause to be transferred or obtained, prior to the Closing or as soon as practicable thereafter, any Environmental Permit necessary for Purchaser to own and operate the Business and the Transferred Assets. In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jerseyforegoing, (i) during the parties acknowledge that period commencing on the execution date hereof and continuing until six (6) months after the Closing, each of this Agreement Purchaser and the consummation members of the Transactions will requireSeller Group shall provide or cause to be provided to the other parties all commercially reasonable assistance as is reasonably requested in connection with transferring or obtaining (and/or terminating, if required by Law or Environmental Law) any such Environmental Permits, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) if any Environmental Permits are not transferred or obtained prior to the Closing, pending the earlier of obtaining such Environmental Permit or the expiration of such six (6)-month period, Purchaser and each member of the Seller Group shall complete use commercially reasonable efforts to cooperate in any lawful and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days reasonable arrangement reasonably proposed by either Purchaser or any member of the date Seller Group under which Purchaser shall obtain the benefit of this Agreementand bear the burdens and obligations of ownership of any such Environmental Permits held by a member of the Seller Group in connection with the ownership or operation of the Business or the Transferred Assets; provided that no member of the Seller Group shall be required to pay any consideration therefor, or to commence, defend or participate in any litigation or offer or grant any accommodation (iiifinancial or otherwise) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)third party; provided, (A) the “General Information Notice” further, that Purchaser shall identify indemnify and be executed by the Company as the responsible party and (B) hold harmless the Seller shall (x) make all other governmental filings Indemnitees from and submissions and take all other actions necessary against any actual Losses arising out of or relating to comply with ISRA (as a result of this Agreement and the consummation any Environmental Permit held by any member of the TransactionsSeller Group for the benefit of Purchaser pursuant to any arrangement established pursuant to clause (ii), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu related to any period of such required source arrangement. If such Environmental Permit is not transferred or assuranceobtained prior to the expiration of such six (6) as necessary month period, the members of the Seller Group will be deemed to consummate have fulfilled its obligations under this Agreement and under no circumstances shall the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have Purchase Price be reduced, or any member of the right to manage and control any Remedial Action with respect Seller Group or its Affiliates be subject to any Non-Legacy liability or cost, on account of the Purchaser’s failure to obtain any such Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserPermit.
(he) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ashland Global Holdings Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall cooperate with each other and use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Law to cause consummate the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as promptly as practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, including using reasonably best efforts to accomplish the Transactions, including following (i) preparing and filing as promptly and fully as reasonably practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, financial statements, records, applications and other documents (including with respect documents, in each case, to any Permits, including Environmental Permits)the extent applicable, (ii) obtaining and maintaining all Consents (including with respect to any approvals, consents, registrations, Permits, including Environmental Permits) authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority or third party necessary, proper or advisable that are necessary to consummate the Transactions transactions contemplated by this Agreement, (iii) defending or contesting any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and (iiiiv) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)transactions contemplated hereby.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall (and Parent shall cause Merger Subsidiary to) (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event within ten (10) Business Days after the date hereof), (ii) make each other appropriate filing required pursuant to any Foreign Antitrust Law (collectively with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act, the “Antitrust Laws”) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten twenty (1020) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this AgreementBusiness Days), and (iiiii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, use reasonable best efforts to cooperate in good faith comply at the earliest practicable date with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking request under any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require Laws for additional information, documents, or other materials received by each of them or any party to take of their respective Subsidiaries or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents Affiliates from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding respect of such strategy, filings or such transactions and (iiiv) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission cooperate with a Governmental Authority each other in connection with any such filing (including, to the Transactions extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority under any of the Antitrust Laws with respect to stay, toll or extend any applicable waiting period under the HSR Act such filing or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) such transaction. Each of the parties hereto such party shall use its reasonable best efforts to (i) cooperate in all respects with furnish to each other in connection with all information required for any filing, submission application or substantive written communication with a Governmental Authority other filing to be made pursuant to any Applicable Law in connection with the Transactions and in connection with any investigation or other inquiry transactions contemplated by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other this Agreement. Each such party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep shall promptly inform the other parties hereto informed in all material respects and on a reasonably timely basis of any material oral communication received by with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No party fromhereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with inquiry without giving the other parties hereto with respect to information relating to prior notice of the other parties hereto and their respective Subsidiariesmeeting and, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTCsuch Governmental Authority, the DOJopportunity to attend and/or participate thereat. Subject to Applicable Law, FERC the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or such other applicable Governmental Authority submitted by or other Personon behalf of any party hereto relating to proceedings under any of the Antitrust Laws. Any party may, give as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties hereto prompt notice of, under this Section 8.01 as “outside counsel only”. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. The parties shall take reasonable opportunity efforts to attend and participate inshare information protected from disclosure under the attorney-client privilege, substantive meetings and conferenceswork product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.
(fc) In furtherance and not in limitation of the obligations set forth efforts referenced in Section 7.01(a8.01(a), Parent (i) shall take any and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsall action necessary, including the execution (1) selling or otherwise disposing of, or consenting toholding separate and agreeing to sell or otherwise dispose of, FPA Section 203-related applications assets, categories of assets or submissions with FERCbusinesses of the Company or its Subsidiaries; (2) terminating existing relationships, including contractual rights or obligations of the Company or its Subsidiaries; (3) terminating any inquiries from staffventure or other arrangement of the Company or its Subsidiaries; (4) creating any relationship, which applications contractual rights or submissions shall be made obligations of the Company or its Subsidiaries or (5) effectuating any other change or restructuring of the Company or its Subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an order or decree with), in each case, as soon as practicablerequired by the Federal Trade Commission, but the Department of Justice or any other competition authority of any jurisdiction under an applicable Foreign Antitrust Law (collectively, “Antitrust Authority”) in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in PedricktownMerger under Antitrust Laws; provided, New Jerseythat any such action may be conditioned upon consummation of the Merger (each a “Divestiture Action”) and to ensure that no Antitrust Authority enters any order, decision, judgment, decree, ruling, injunction (ipreliminary or permanent) the parties acknowledge that the execution of this Agreement and preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Transactions will requireMerger or to ensure that no Antitrust Authority with the authority to clear, and authorize or otherwise approve the parties consummation of the Merger, fails to do so by the End Date; provided, however, that none of Parent, Merger Subsidiary or any of their respective Affiliates, shall reasonably cooperate with respect be required to sell, dispose of, hold separate, agree to sell or dispose of, terminate, create or effectuate any other change or restructuring (or enter into any agreement or stipulation), or otherwise agree or commit to, compliance with the New Jersey Industrial Site Recovery Actor otherwise effect, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended any Divestiture Action (“ISRA”), (iiA) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)assets, (A) the “General Information Notice” shall identify and be executed by categories of assets or businesses, relationships, rights, obligations, ventures or other arrangements of the Company or any of its Affiliates that would, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as the responsible party and a whole or (B) with respect to any of Parent’s, Merger Subsidiary’s or any of their respective Affiliates’ respective assets (including the Seller stock of the Company, after the Merger), categories of assets or businesses, relationships, rights, obligations, ventures or other arrangements (any of the foregoing in this proviso, individually or together with any other Divestiture Action, a “Burdensome Divestiture Condition”); and (ii) shall (x) not consummate or enter into any agreement providing for any acquisition by it or its Subsidiaries of any interest in any Person that derives revenues from products, services or lines of business similar to the Company’s products, services or lines of business if such action would make all other governmental filings and submissions and take all other actions necessary it materially more likely that there would arise any impediments under any Antitrust Law that may be asserted by any Governmental Authority to comply with ISRA (as a result of this Agreement and the consummation of the Transactions)transactions contemplated hereby as soon as reasonably practicable. In the event that any action is instituted challenging the Merger as violative of any Antitrust Law, Parent shall take all action necessary, including causing litigation on the Company merits and/or any Divestiture Action to execute an “ISRA Remediation Certification” form and resist, avoid or resolve such action up to establish a Burdensome Divestiture Condition. In the event that any required remediation funding source permanent or financial assurance (unless Purchaser notifies Seller preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in advance any proceeding that would make consummation of the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, transactions contemplated hereby in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the contrary in consummation of the transactions contemplated by this Agreement, Parent shall take promptly any and all steps, up to a Burdensome Divestiture Condition, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the Seller End Date. The Company shall cooperate with Parent and shall use its Affiliates reasonable best efforts to assist Parent in resisting and reducing any Divestiture Action, provided that, unless requested in writing by Parent, the Company shall have no obligation to pay money not propose, negotiate, agree or offer commit to, or make otherwise effect any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01Divestiture Action.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner practicableas promptly as reasonably practicable (but subject to Section 3.01), the Transactions, including using reasonable best efforts with respect to (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party other Person necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to (A) Antitrust Laws, which are dealt with in Section Sections 7.01(b) and (c), (cB) Transferred Assets and Shared Contracts (where applicable), which are dealt with in Section 2.04 and Section 7.01(d), respectively, and (d)C) Supply Agreement pricing, which is dealt with in Section 7.23.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, no later than 5:00 p.m. New York City time on such date that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown is 25 Business Days following the date of this Agreement)hereof, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions prior to the Termination Date. Without limiting the foregoing, Purchaser shall promptly take, or cause to be taken, any and all actions reasonably necessary to secure the expiration or termination of any applicable waiting period under the HSR Act (“HSR Approval”) or any other Antitrust Law or any other Consent under Antitrust Laws, and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Purchaser (including, after the Closing, any Transferred Assets), (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of Purchaser (including, after the Closing, any Transferred Assets), (D) terminating existing relationships, contractual rights or obligations of Purchaser, (E) terminating any joint venture or other arrangement, (F) creating any relationship, contractual right or obligation of Purchaser or (G) effectuating any other change or restructuring of Purchaser (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of actions by or with respect to the Seller, by consenting to such action by the Seller (including any Consents required under this Agreement or the other Transaction Documents with respect to such action); provided, that any such action may, at the discretion of the Seller, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in a court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. All such efforts shall be unconditional and shall not be qualified in any manner and no actions taken pursuant to this Section 7.01 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Purchaser shall respond to and seek to resolve as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that objections asserted by any Governmental Authority may have with respect to the Transactions (any Transactions. The Seller and Purchaser and, in the case of the actions described in Seller, shall cause its Affiliates not to, take any action with the foregoing clause (i)intention to, (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not could reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets materially hinder or operations pursuant to this Section 7.01 delay the expiration or termination of any other provision of this Agreement, and waiting period under the “reasonable best efforts” HSR Act or the obtaining of the Seller shall not include taking any approval of the Antitrust Remedial Actions.
(d) DOJ or FTC as necessary. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The parties acknowledge and agree that Purchaser shall (i) control and direct, and the Seller will cooperate reasonably, subject to applicable Law, with such direction and control, all strategy for and decisions with respect to obtaining any all Consents from any Governmental Authority in connection with the Transactions; , including all filings (including where to file and the timing of such filings) and any withdrawals and/or refiling thereof, strategies, processes, negotiations of settlements (if any), and related proceedings contemplated by this Section 7.01, provided that the Purchaser shall consult with and consider in good faith with the views of the Seller regarding the form and content of any such strategyfilings, withdrawals, refilings, strategies, processes, negotiations and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other partyrelated proceedings.
(ec) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and allow the other party to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views of such the other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”), FERC DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto reasonably prompt notice of, and the reasonable opportunity to attend and participate in, substantive such meetings and conferences.
(fd) Notwithstanding anything to the contrary in Section 2.04, Purchaser and Seller shall cooperate and shall cause their Affiliates to cooperate using their respective commercially reasonable efforts to transfer, assign, obtain, or to cause to be transferred, assigned or obtained, prior to the Closing or as soon as practicable thereafter, all Environmental Permits, including any Environmental Permit necessary for Purchaser to own, operate or occupy the Business or the Transferred Assets. In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jerseyforegoing, (i) during the parties acknowledge that period commencing on the execution date hereof and continuing until six (6) months after the Closing Date, each of this Agreement Purchaser and Seller shall provide or cause to be provided to the consummation of the Transactions will requireother party all commercially reasonable assistance as is reasonably requested in connection with transferring, assigning, obtaining or securing (and/or terminating, if required by Law or Environmental Law) any such Environmental Permits, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) if any Environmental Permits are not transferred, assigned, obtained or secured prior to the Closing, pending the earlier of obtaining of such Environmental Permit and the expiration of such six (6) month period, Purchaser and Seller shall use commercially reasonable efforts to cooperate in any lawful and reasonable arrangement under which Purchaser shall obtain the benefit of and bear the burdens and obligations of ownership of any such Environmental Permits held by Seller in connection with the ownership or operation of the Business or the Transferred Assets; provided, that Seller shall not be required to pay any consideration therefor or to commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party; provided, further, that, subject to and without in any way limiting Seller’s obligations pursuant to Section 10.02 (including as they relate to Legacy Environmental Release Liabilities), Purchaser shall indemnify, defend and hold harmless the Seller Indemnitees from and against any and all Losses arising out of or relating to any Environmental Permit held by Seller for the benefit of Purchaser pursuant to any arrangement established pursuant to clause (ii). Seller’s obligations regarding Environmental Permits pursuant to this Section 7.01(d) shall complete and file a “General Information Notice” as defined cease six (6) months after the Closing Date, at which point Seller will be deemed to have fulfilled all related requirements under and in compliance with ISRA (the “ISRA Filing”this Section 7.01(d) within five days of the date of this Agreement, (iii) Agreement and under no circumstances shall the Purchase Price be reduced or the Seller Group be subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation Liability on account of the Transactionsfailure to obtain any Environmental Permit pursuant to this Section 7.01(d), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(he) Notwithstanding anything to the contrary in this Agreement, no member of the Seller and its Affiliates Group shall have no any obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.017.01 or Section 2.04.
Appears in 1 contract
Sources: Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Efforts. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 7.03), the Purchaser each of Parent and the Seller Company shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Law or Order to consummate and make effective, in effective the most expeditious manner Transactions as promptly as reasonably practicable, the Transactions, including (i) preparing and filing as promptly and fully as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining and maintaining all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party other Third Party that are necessary, proper or advisable to consummate and make effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and (iii) executing and delivering other confirmations are conditions to the consummation of the Merger pursuant to Article 8); provided, however, that none of the Company, its Subsidiaries nor any additional instruments necessary to consummate the Transactionsof their respective Representatives shall provide notice to, in the case of each of clauses (i) through (iii)or request consent from, other than any Third Party with respect to filingsthis Agreement or the Transactions without the prior written consent of Parent (such consent not to be unreasonably withheld or delayed). Parent further acknowledges and agrees that, noticesnotwithstanding anything in this Agreement to the contrary, petitions, statements, registrations, submissions of information, applications the activities and other Consents relating to Antitrust Laws, which are dealt with circumstances described in Section 7.01(b), (c) and (d)7.01 of the Company Disclosure Letter do not limit or otherwise affect Parent’s obligations under this Agreement.
(b) Each In furtherance, and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable after the date of this Agreement (and in any event within fifteen (15) Business Days of the date of this Agreement in the case of the following clause (i) make and within 30 days of the date of this Agreement in the case of the following clauses (ii) and (iii) (unless counsel to the Parties have previously agreed to extend such periods)), (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions Transactions, (which shall request the early termination ii) an appropriate filing of any waiting period applicable to a Notification of the Transactions under with the HSR ActGerman Federal Cartel Office (“Bundeskartellamt”) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following prescribed by the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)ARC, and (iii) a notification to The Federal Antimonopoly Service of the Russian Federation pursuant to FLN 135 (the jurisdictions referenced in clauses (ii) and (iii), the “Required Jurisdictions”). Each of Parent and the Company shall use reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to the HSR Act foregoing, and such use reasonable best efforts to take all other Antitrust Laws and to promptly take any and all steps actions necessary to avoid cause the expiration or eliminate each termination of (and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so not to extend) the applicable waiting periods regarding the foregoing as to enable the parties hereto to consummate the Transactions as promptly soon as reasonably practicable and in any event prior to the Termination Datepracticable.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all Except as prohibited by applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer Law or consent to a Judgment Order or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without each of Parent and the prior written consent of the other party.
(e) Each of the parties hereto Company shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationparty, (ii) keep promptly inform the other parties hereto informed Party of (and if in all material respects and on a reasonably timely basis of writing, supply to the other Party) any material communication (other than any ministerial communications) received by such party Party from, or given by such party Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, (iii) subject consult with each other prior to applicable Laws taking any material position in discussions with or filings to be submitted to any Governmental Authority regarding any of the Transactions, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation to be submitted to any Governmental Authority regarding any of the Transactions, and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the exchange Transactions. Notwithstanding anything to the contrary herein, Parent shall, on behalf of informationthe Parties, have control over and lead all communications and strategy, including all analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation, relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Authority in connection with consummating the Transactions, except for stockholder litigation as set forth in Section 7.08. The Parties shall take reasonable best efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 7.01 in a manner so as to preserve the applicable privilege.
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private), each of Parent and the Company shall (i) to the extent reasonably practicable, consult not participate in or attend any meeting, or engage in any conversation (other than ministerial conversations) with any Governmental Authority or arbitrator (public or private) in respect of the other parties hereto Transactions (including with respect to information relating any of the actions referred to in Section 7.01(a)) without the other, (ii) to the extent reasonably practicable, give the other parties hereto reasonable prior notice of any such meeting or conversation and their respective Subsidiaries, as (iii) in the case may be, that appears event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private) from participating or attending any such meeting or engaging in any filing made withsuch conversation, keep such non-participating Party reasonably apprised with respect thereto.
(e) Parent and the Company shall use reasonable best efforts to take, or written materials submitted tocause to be taken, any third Person or any Governmental Authority all actions necessary to consummate the Transactions. Without limiting the generality of the foregoing, but subject to Section 7.01(f), each Party: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such Party in connection with the Transactions; (ii) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable Law or Contract, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted request by the FTC, the DOJ, FERC or such other applicable a Governmental Authority or arbitrator (public or private), or otherwise) by such Party in connection with the Transactions; and (iii) shall use reasonable best efforts to lift or cause to be overturned any restraint, injunction or other Person, give legal bar to the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferencesTransactions.
(f) In furtherance For purposes of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller “reasonable best efforts” shall include (A) contesting and the Purchaser shall use their respective resisting any Proceeding, and using reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortshave vacated, including the execution oflifted, reversed or consenting tooverturned any Order that restricts, FPA Section 203-related applications prevents or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and prohibits the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined Merger or any other transactions contemplated by this Agreement under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party applicable Law; and (B) the Seller shall obligation by Parent, Merger Sub, and any of their Subsidiaries to offer and consent to, and thereafter to implement, any of the following measures if doing so is necessary to enable the parties to avoid, resolve, or lift an Order or Proceeding or to obtain any approval of a Governmental Authority set forth in Section 8.01(c): (xi) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) payment to any Governmental Authority as required by applicable Law or other third party in connection with the performance terms of any governmental grant, authorization or permit, (ii) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective obligations under Subsidiaries, (iii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (iv) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries. Prior to the earlier of the Closing and the termination of this Section 7.01Agreement, neither Parent nor Merger Sub shall, and each of Parent and Merger Sub shall cause their affiliates to not, enter into any acquisition agreement, asset purchase agreement, stock purchase agreement or other similar agreement (or otherwise consummate any such transaction), in each case for the purchase of a corporation, partnership, or other business organization or business thereof (including all or substantially all of the assets of such business) within the Unified Communications as a Service industry that would reasonably be expected to prevent or materially delay the Merger.
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller shall use cause their respective Affiliates to, use all reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause consummate and make effective the Merger and the other transactions contemplated by this Agreement in the most expeditious manner possible after the date hereof and in any event prior to the End Date, including (i) causing the conditions to the Closing set forth in Article 6 to be satisfied satisfied, (ii) the obtaining and maintaining of all necessary actions or non-actions, waivers, consents (including such consents set forth on Section 5.7(a)(ii) of the Company Disclosure Schedule), clearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations, notifications and filings and the taking of all steps as promptly as practicable may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iii) the obtaining and maintaining of all necessary consents, approvals or waivers from third parties, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) Subject to the terms and make effectiveconditions herein provided, and in furtherance and not in limitation of the most expeditious manner practicableobligations set forth in this Agreement, the TransactionsCompany, including Parent or its Subsidiaries and Antitrust Affiliates, and Merger Sub, as applicable, shall (i) preparing and filing promptly and fully all documentation to effect promptly, but in no event later than fifteen (15) Business Days after the date hereof, make all necessary filingsfilings to obtain any consents, noticespermits, petitionsauthorizations, statementswaivers, registrationsclearances, submissions approvals or expirations or terminations of information, applications and other documents (including waiting periods from or with respect to any Permits, including Environmental Permitsthe FCC that are required in connection with the Merger and the other transactions contemplated by this Agreement (the “FCC Applications”), (ii) obtaining promptly, but in no event later than thirty (30) Business Days after the date hereof, make all Consents (including necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the LFAs that are required in connection with the Merger and the other transactions contemplated by this Agreement, (iii) promptly, but in no event later than thirty (30) Business Days after the date hereof, make all necessary filings to obtain any Permitsconsents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the State PUCs, (iv) promptly, but in no event later than fifteen (15) Business Days after the date hereof, submit a filing (or draft thereof) with the European Commission; (v) use all reasonable best efforts to cooperate with each other in (A) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, or with respect to, any third parties or Governmental Entities, including Environmental Permitsunder other applicable Antitrust Laws or Communications Laws and/or in connection with the Specified Approvals and Parent Approvals, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) from promptly making all such filings, and (vi) supply to any Governmental Authority Entity as promptly as practicable any additional information or third party documents that may be requested pursuant to any Law or by such Governmental Entity. Subject to the terms and conditions herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company, Parent or its Subsidiaries and Merger Sub, as applicable, shall use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and transactions contemplated hereby, including taking such further action (iiiother than litigation) executing and delivering any additional instruments as may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Division of the parties hereto agrees to United States Department of Justice, state antitrust enforcement authorities, the FCC, any State PUC, any LFA or any other Governmental Entity or other Person may assert under any Law (iincluding in connection with the Specified Approvals and Parent Approvals) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate occur as promptly as practicable after the Transactions date hereof (and in any event no later than the End Date). Notwithstanding anything to the contrary contained in this Agreement (but subject to the proviso contained in this sentence), and in furtherance of and consistent with Parent’s reasonable best efforts under this Section 5.7, Parent or its Subsidiaries shall take, and shall cause to be taken, all actions, and shall do, or cause to be done, all things necessary, proper or advisable, with respect to Parent or its Subsidiaries (including the Company and its Subsidiaries) to eliminate each and every impediment under any Antitrust Law that is asserted by any Governmental Bodies (including Regulatory Authorities), to obtain the consent or cooperation of any other Person, and to permit and cause the satisfaction of the conditions set forth in Section 6.1(c), in each of the foregoing cases, to permit the Closing to occur as promptly as reasonably practicable and in any event prior to the Termination End Date.
, including: (cx) Without limiting the foregoingproposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate order or otherwise, the Purchaser sale, divestiture, license, hold separate or disposition of any and all of the Seller shallequity interests, assets (whether tangible or intangible), products or businesses of the Company or its Subsidiaries, (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s, the Company’s or their Subsidiaries’ freedom of action with respect to, or their ability to retain or hold, directly or indirectly, the equity interests, assets (whether tangible or intangible), products, or businesses of the Company and/or its Subsidiaries, or (z) creating, terminating or divesting relationships, ventures, contractual rights or obligations of the Company or its Subsidiaries, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action that would otherwise have the effect of preventing or delaying the Closing (each of clauses (x)-(z) a “Remedy Action”); provided that (A) Parent or its Subsidiaries, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) Merger Sub shall not be required to (i) proffer propose, commit to, effect or consent to a Judgment or consent order providing for the sale or other dispositionagree to, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns Remedy Action that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, aggregate has had or would not reasonably be expected to be have a material to adverse effect on the Businessfinancial condition or current operations of either (x) the Company and its Subsidiaries, taken as a whole. For the avoidance of doubt , or (y) Parent and notwithstanding anything its Subsidiaries, taken as a whole, in each case as measured relative to the contrary in this Section 7.01 size of the Company regardless of whether such actions are imposed on, or any other provision of this Agreement, neither the Seller nor any of affect Parent and its Affiliates or the Company and its Subsidiaries; and (other than B) the Transferred Entities effective upon the Closing) Company shall only be required to sell, divest, dispose of take or enter into commit to take any other arrangementsaction, or take agree to any other Antitrust Remedial Action with respect to, their businesses, product lines, assets condition or operations restriction as requested by Parent pursuant to this Section 7.01 5.7, if such action, commitment, agreement, condition or any other provision of restriction is binding on the Company only in the event the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and the “reasonable best efforts” of the Seller Merger Sub shall not include taking any of the Antitrust Remedial Actions.
(dand shall cause their Subsidiaries not to) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser In the event that any information in the filings submitted pursuant to this Section 5.7(b) or any such supplemental information furnished in connection therewith is deemed confidential by either party, the parties shall (i) control use their reasonable best efforts to maintain the strategy for obtaining confidentiality of the same, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view. Neither Parent, Merger Sub nor any Consents from of their Subsidiaries or Affiliates will withdraw any notices, reports, filings or applications with any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority Entity relating to the Transactions and Merger, enter into any timing agreement or agreement not to consummate the Merger for any period of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall time, or otherwise commit to or agree with any Governmental Authority Entity to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, applicable Law without the Company’s prior written consent (which may not be given other than at the direction of the other partySpecial Committee).
(ec) Each Between the date hereof and the earlier of the parties hereto Effective Time and the Termination Date, Parent and Merger Sub shall use not, and shall not permit the Equity Investors or any of their Subsidiaries or Affiliates or Antitrust Affiliates to, enter into any binding Contracts to acquire (by stock purchase, merger, consolidation, purchase of assets, license or otherwise) any ownership interests in any Person providing broadband services (i.e., highspeed data, cable television, or digital telephony services) to residential customers in any of the same counties or cities in which the Company or any of its reasonable best efforts Subsidiaries provides broadband services to residential customers as of the date of this Agreement, to the extent that such acquisition would be reasonably expected to (ix) prevent the obtaining of, or result in not obtaining prior to the End Date, any authorizations, consents, orders, declarations or approvals of any Governmental Entity or the expiration or termination of any applicable waiting period necessary to consummate the transactions contemplated by this Agreement, or (y) materially increase the risk of any Governmental Entity entering an order, ruling, judgment or injunction prohibiting the consummation of the Merger or the other transactions contemplated by this Agreement, or of the failure to be satisfied of any conditions set forth in Section 6.1 (any such Contract or acquisition, a “Specified Parent Acquisition”). Parent shall cause its and its Affiliates’ respective partners, equityholders, investment professionals or executives, as applicable, to cooperate in all respects responding as promptly as practicable to any investigation or other inquiry from a Governmental Entity, including by providing any such information (including financial information) in connection with such investigation or inquiry.
(d) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filingother actions pursuant to this Section 5.7, submission or substantive written communication with a Governmental Authority in connection with and, subject to applicable legal limitations, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated thereby, including any proceeding initiated by a private personusing commercially reasonable efforts to promptly furnish the other with copies of notices or other communications (or, allow if not in writing, advise the other party orally of such notices or communications) received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Antitrust Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, that Parent and the Company may, as each deems advisable and necessary, reasonably designate any sensitive materials provided to the other under this Section 5.7(c) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 5.7, materials provided pursuant to this Section 5.7 may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, P▇▇▇▇▇ and M▇▇▇▇▇ Sub agrees not to participate in any meeting or discussion, in person, by videoconference or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance, considers in good faith the views of the other party with respect to such filingmeeting or discussion, submissionand, or substantive written communicationto the extent not prohibited by such Governmental Entity, (ii) keep gives the other parties hereto informed party the opportunity to attend and participate.
(e) In furtherance and not in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division limitation of the Department covenants of Justice (the “DOJ”)parties contained in this Agreement, the Federal Trade Commission (the “FTC”)including in this Section 5.7, FERC if any administrative or any other Governmental Authority and of any material communication received judicial action or given in connection with proceeding, including any proceeding by a private Personparty, in is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each case regarding any of the TransactionsCompany, (iii) subject to applicable Laws relating to the exchange of information, Parent and to the extent reasonably practicable, consult Merger Sub shall cooperate in all respects with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC contest and resist any such Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement.
(f) Each party shall bear its own expenses in connection with the preparation, filing, and prosecution of the FCC Applications and any filings made with State PUCs and LFAs pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser 5.7(b), except that Parent is responsible for all filing fees associated with any such filings as set forth in, and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting subject to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines8.2.
(g) In connection with Subject to the Company Sites located terms and conditions herein provided, and in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement furtherance and the consummation not in limitation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary set forth in this Agreement, the Seller Company shall use its commercially reasonable efforts to apply for renewal of each Franchise set forth on Section 5.7(g) of the Company Disclosure Schedule and its Affiliates pursue such applications diligently. The Company, Parent and Merger Sub shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or cooperate and consult with each other third party in connection with the performance making of their respective obligations under this Section 7.01all registrations, filings, notifications, communications, submissions and any other actions in connection with renewing the Franchises.
Appears in 1 contract
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, the Purchaser Parties shall, and the Seller shall cause their respective Affiliates to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under any applicable Law to consummate and make effective, in effective as promptly as reasonably practicable the most expeditious manner practicable, transactions contemplated by this Agreement and the Transactionsother Transaction Documents, including (i) preparing the preparation and filing promptly and fully of all documentation to effect all necessary filings, notices, petitions, statementsforms, registrations, submissions of information, applications Filings and other documents notices required to be filed to satisfy the conditions precedent to this Agreement (including with respect those set forth in Section 11.1) and to any Permits, including Environmental Permits)consummate the transactions contemplated by this Agreement as soon as practicable, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions execution and (iii) executing and delivering delivery of any additional instruments necessary to consummate the Transactions, in transactions contemplated by this Agreement and to fully carry out the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date purposes of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (iiiii) supply as promptly as reasonably practicable any additional information obtaining necessary waivers, consents and documentary material that may be requested pursuant to approvals from applicable third parties required under Section 4.4 of the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Washington Disclosure Schedules. Without limiting the foregoing, the Purchaser Georgia, Merger Subs, Sellers and the Seller Washington shall, and shall cause their respective Affiliates to, with respect to useRegulatory Approvals required for the closing of the Washington Pre-Closing Reorganization and the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Florida in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Florida (or the applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and Merger Subs, on the one hand, and Sellers, Blockers and Washington (and its Subsidiaries), on the other hand, shall cooperate in good faith with the other Party and Florida (or their respective legal counsels) to satisfy all applicable Governmental Authorities required obligations in relation to Washington Sale Regulatory Approvals. Florida is hereby expressly made a third-party beneficiary of this Section 8.1(a).
(b) The Parties shall not, and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Dateshall cause their respective Affiliates not to, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of take any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and action after the Closing and (B) individually or in the aggregate, date of this Agreement that would not reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approvals, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary to be material obtained prior to the BusinessClosing. Without limiting the foregoing, taken as a whole. For the avoidance of doubt Parties shall not, and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreementshall cause their respective Affiliates not to, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of acquire or enter into a definitive agreement to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or merge or consolidate with any other arrangementsPerson, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or take result in not obtaining, any other Antitrust Remedial Action with respect toRegulatory Approval required to be obtained to satisfy the conditions set forth in Section 11.1(a). The Parties shall not, their businesseswithout the prior written consent of Georgia, product linesWashington and Chicago, assets extend or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take offer or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Regulatory Law or other Law under which a Regulatory Approval is required, or enter into a timing any agreement with any Governmental AuthorityEntity related to this Agreement, without the prior written consent of the other partyTransaction Documents or the transactions contemplated by this Agreement.
(ec) Each Prior to the Closing, the Parties shall each keep the other reasonably apprised of the parties hereto status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 7.2, Georgia and Merger Subs, on the one hand, and Sellers, Blockers and Washington, on the other hand, shall use its reasonable best efforts to (i) cooperate promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all respects Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or material correspondence with, a Governmental Entity, in each other case, in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow such Regulatory Approval; (ii) promptly inform the other party Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any material communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding such Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review such filing, submission, or substantive written communication and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication with any such other party Governmental Entity in connection with such Regulatory Approval; (iv) if such Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such filingRegulatory Approval, submissionthen such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by the applicable Governmental Entity, or substantive written communication, (ii) keep the other parties hereto informed not participate in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or meeting with any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding by a private Personsuch Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other conversations) unless it consults with the other Party in each case regarding any of the Transactionsadvance and, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicablenot prohibited by such Governmental Entity or any applicable Law, consult with gives the other parties hereto with respect to information relating to Party the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate inthereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, substantive meetings in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and conferencesany Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that a Party may, as it deems advisable and necessary, reasonably designate portions of correspondence or Filings that contain sensitive personal data or commercially sensitive information relating to such Party or its controllers or control persons as “outside counsel only,” which such portions shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel; and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Washington Business or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Florida with respect to the Regulatory Approvals (as defined in the Florida Transaction Agreement) required to be obtained under the Florida Transaction Agreement, and shall require the Parties and Florida to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Florida Transaction Agreement in the manner set forth in this Section 8.1(c). Florida is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Sellers, Blockers, Washington, their Affiliates or Representatives and/or secure the participation of Sellers, Blockers, Washington, their Affiliates or Representatives in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Sellers, Blockers or Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(fd) Without limiting the foregoing, the Parties shall, and shall cause their respective Affiliates to, file as promptly as practicable notifications under the HSR Act and any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the obligations foregoing, and notwithstanding anything in this Agreement to the contrary, the Parties shall, and shall cause their controlled Affiliates (excluding portfolio companies of the Sellers and their Affiliates) to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration), so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 7.01(a11.1(a)(i) and otherwise Section 11.1(a)(ii), subject to the remainder of this Section 8.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration), Georgia shall direct the timing of proffering and agreeing to the remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 7.018.1(e), and further subject to consulting in good faith with Washington and Chicago prior to making any such timing decisions. With respect to the Seller Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Washington Florida Interest Sale and the Purchaser Mergers (including the issuance of the Washington Stock Consideration), Georgia, Florida and Washington shall, and shall cause their Affiliates to, use their respective reasonable best efforts (including proffering and agreeing to obtain approval from FERC pursuant the remedies set forth in this Section 8.1(e)) to Section 203 resolve such objections of the FPA applicable Governmental Entities at both (i) their initial stage of review in order to consummate mitigate the Transactions. The Purchaser risk of referral of the Washington Florida Interest Sale or the Mergers (including the issuance of the Washington Stock Consideration) by such applicable Governmental Entities to an in-depth investigation or review, and its Affiliates shall reasonably cooperate and consult with (ii) in the Seller and its Affiliates in event of such effortsreferral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the execution approval of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) by such applicable Governmental Entities, prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Georgia shall (i) defend through litigation any claim asserted in court or before any other Governmental Entity by any Person in order to avoid entry of, or consenting toto have vacated or terminated, FPA Section 203-related applications any decree, order or submissions with FERCjudgment (whether temporary, preliminary or permanent) that would prevent the Closing by the Outside Date, including any inquiries from staffby pursuing all available avenues of administrative and judicial appeal, which applications and (ii) proffer to and agree to sell, divest, lease, license, transfer, dispose of or submissions shall be made as soon as practicableotherwise encumber or hold separate, but in no event later than ten (10) calendar days before or after the date Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein of the Washington Business and/or of Georgia or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or other impairment of Georgia’s and/or Washington’s or its Subsidiaries’ ability to own, retain, manage or operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Georgia’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Washington Business and/or of Georgia or its Subsidiaries; provided, however, that, notwithstanding any other provisions of this Agreement. The Purchaser , neither Georgia nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Georgia and its Affiliates shall make all necessary post-Subsidiaries (including for this purpose Washington and its Subsidiaries) from and after the Closing filings (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Georgia and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with its Subsidiaries from and after the Company Sites located in Pedricktown, New Jersey, (i) Closing were collectively the parties acknowledge that same size as the execution merchant solutions business segment of this Agreement Georgia and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., its Subsidiaries as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, (iii) subject none of Georgia, Chicago, Washington or their respective Affiliates shall be obligated to Seller’s indemnification obligations take or agree or commit to take any action in connection with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)obtaining the Washington Sale Regulatory Approvals that is not conditioned on the Closing. In addition, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall applicable, (x) make all Washington shall defend through litigation on the merits any claim asserted in court or before any other governmental filings and submissions and take all other actions necessary Governmental Entity by any Person in order to comply with ISRA avoid entry of, or to have vacated or terminated, any Judgment (as a result whether temporary, preliminary or permanent) that would prevent the closing of this Agreement the Purchased Entity Sale, the Washington Florida Interest Sale and the consummation Mergers (including the issuance of the Transactions)Washington Stock Consideration) by the Outside Date, including causing the Company to execute an “ISRA Remediation Certification” form by pursuing all available avenues of administrative and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaserjudicial appeal, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) Chicago shall defend through litigation on the merits any claim asserted in court or before any other Governmental Entity by any Person in order to avoid entry of, or to have the right to manage and control vacated or terminated, any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRAJudgment (whether temporary, in accordance with the terms of Section 10.05(cpreliminary or permanent) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.that would preve
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser Company and the Seller Parent shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Law or Order to consummate and make effective, in effective the most expeditious manner Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable, the Transactions, including (i) preparing and filing as promptly and fully as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining and maintaining all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party other Third Party that are necessary, proper or advisable to consummate and make effective the Transactions Merger and the other transactions contemplated by this Agreement (iii) executing and delivering any additional instruments necessary to consummate the Transactionswhether or not such approvals, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statementsconsents, registrations, submissions of informationpermits, applications authorizations and other Consents relating confirmations are conditions to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (dthe consummation of the Merger pursuant to Article 9).
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable (and in any event within ten (10) Business Days of the date of this Agreement in the case of the following clause (i) make (unless counsel to the Parties have previously agreed to extend such ten (10) Business Day period)), (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of transactions contemplated by this Agreement, (and ii) an appropriate filing of a Form CO with the European Commission, (iii) all necessary filings to obtain consents from the state regulators that are required in any event connection with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), Merger and (iiiv) all other registrations, declarations, notices and filings with Governmental Authorities that are required in connection with the Merger. Each of the Company and Parent shall use its reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to the HSR Act foregoing, and such use its reasonable best efforts to take all other Antitrust Laws and to promptly take any and all steps actions necessary to avoid cause the expiration or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so termination of the applicable waiting periods regarding the foregoing as to enable the parties hereto to consummate the Transactions as promptly soon as reasonably practicable and in any event prior to the Termination Datepracticable.
(c) Without limiting the foregoingExcept as prohibited by applicable Law or Order, the Purchaser each of Parent and the Seller shall, and Company shall cause their respective Affiliates to use, use its reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any cooperate with each other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private personparty, allow (B) promptly inform the other party Party of (and if in writing, supply to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of Party) any material communication (other than any ministerial communications) received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”)European Commission, FERC or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iiiC) subject consult with each other prior to applicable Laws taking any material position with respect to the filings under the HSR Act or any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, (D) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act or any other Competition Law, and (E) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the exchange transactions contemplated hereby under the HSR Act or any other Competition Law. Notwithstanding anything to the contrary herein, Parent shall, on behalf of informationthe parties, have control over and lead all communications and strategy relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations under any Competition Law from any Governmental Authority or other Third Party in connection with consummating the Merger and the other transactions contemplated by this Agreement or to any litigation under any Competition Law arising therefrom; provided, however, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such approvals, as applicable. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section in a manner so as to preserve the applicable privilege.
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiariesnot participate in or attend any meeting, as the case may be, that appears or engage in any filing made with, or written materials submitted to, any third Person or conversation (other than ministerial conversations) with any Governmental Authority in connection respect of the Merger (including with respect to any of the Transactionsactions referred to in Section 8.01(a)) without the other, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (ivii) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Personreasonably practicable, give the other parties hereto prompt reasonable prior notice ofof any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, and the reasonable opportunity to attend and participate in, substantive meetings and conferenceskeep such non-participating Party reasonably apprised with respect thereto.
(fe) In furtherance Subject to the terms and conditions of this Agreement, including Section 8.01(f), each of Parent and the Company agrees to use its reasonable best efforts to take or cause to be taken, any and all steps and to make or cause to be made any and all undertakings necessary to resolve such objections, if any, that a Governmental Authority of competent jurisdiction asserts with respect to any Required Competition Approval under any applicable Competition Law with respect to the Merger and the other transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment under any applicable Competition Laws asserted by any such Governmental Authority of competent jurisdiction with respect to the Merger and the other transactions contemplated by this Agreement, in each case, to the extent necessary so as to enable the Closing to occur no later than the End Date, which reasonable best efforts shall include (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license or disposition of any businesses, assets, equity interests, product lines or properties of Parent or the Company (or any of their respective Subsidiaries), (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries and (z) otherwise taking or committing to take any action that would limit Parent’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Parent or the Company (including any of their respective Subsidiaries) (each of (x), (y) and (z), the “Competition Actions”), in each case as may be required in order to obtain any Required Competition Approval to the extent necessary so as to enable the Closing to occur no later than the End Date. In addition each of Parent and the Company shall take any Competition Action to the extent necessary to avoid the entry of, or to effect the dissolution of, any Order by a Governmental Authority of competent jurisdiction under any Competition Law (each, a “Competition Law Order”) prohibiting the consummation of the Merger. To assist Parent in complying with its obligations set forth in this Section 7.01(a) 8.01(e), if requested by Parent, the Company shall, and otherwise subject shall cause its Subsidiaries to, enter into one or more agreements requested by Parent to be entered into by any of them prior to the terms Closing with respect to any transaction to divest, hold separate or otherwise take any action that limits the Company’s or its Subsidiaries’ freedom of this Section 7.01action, the Seller and the Purchaser shall use ownership or control with respect to, or their respective reasonable best efforts ability to obtain approval from FERC pursuant to Section 203 retain or hold, directly or indirectly, any of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsbusinesses, including the execution ofassets, equity interests, product lines or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date properties of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktownor any of its Subsidiaries (each, New Jerseya “Divestiture Action”); provided, (i) the parties acknowledge however, that the execution of this Agreement and the consummation of the Transactions will require, and transactions provided for in any such agreement for a Divestiture Action shall be conditioned upon the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days Closing or satisfaction or waiver of all of the date of this Agreement, (iii) subject conditions to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) Closing in a case where the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, Closing will provide a self guarantee in lieu of occur immediately following such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Divestiture Action. Notwithstanding anything to the contrary in this Agreement, in the Seller and its Affiliates event the Parties are unable to agree on which actions to take pursuant to this Section 8.01(e), Parent shall have no obligation the final determination with respect to pay money or offer or make any concession or grant any accommodation (financial or otherwise) which action to any Governmental Authority or other third party in connection take; provided, that such determination shall be consistent with the performance of their respective Parent’s obligations under this Section 7.018.01(e).
(f) Notwithstanding anything in this Agreement to the contrary, Parent and its Subsidiaries shall not be required to, and the Company and its Subsidiaries shall not, without the prior written consent of Parent, take any action, or commit to take any action, or agree to any condition or limitation contemplated in this Section 8.01, including any step or undertaking or action contemplated in Section 8.01(e), that (i) would, or would reasonably be expected to, have a material adverse effect on the business, results of operations, or financial condition of either (x) Parent and its Subsidiaries (but not including the Company and its Subsidiaries) or (y) the Company and its Subsidiaries, in each case of (x) and (y), measured on a scale relative to the Company and its Subsidiaries, taken as a whole, or (ii) in order to avoid the entry of, or to effect the dissolution of, any Competition Law Order in a jurisdiction other than the United States or any other jurisdiction set forth on Section 9.01(e) of the Company Disclosure Letter, would require Parent to take any action with respect to any business, properties or assets of Parent and its Subsidiaries, or the Company and its Subsidiaries, located outside of the home country of the Governmental Authority of competent jurisdiction in respect of such a Competition Law Order (either of (i) or (ii) above, a “Burdensome Condition”).
(g) In furtherance and not in limitation of the covenants of the parties contained in this Section 8.01, if any administrative or judicial action or proceeding by the Federal Trade Commission or Department of Justice or other similar Governmental Authority of competent jurisdiction is instituted challenging the Merger or any other transaction contemplated by this Agreement as violative of any Competition Law, Parent shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall not be required to, and the Company shall not, without the prior written consent of Parent, take any action under this Section 8.01(g) that would, or would be reasonably likely to, result in the imposition of a Burdensome Condition. To assist Parent in complying with its obligations set forth in this Section 8.01(g), the Company shall, and shall cause its Subsidiaries to, provide to Parent such cooperation as may be reasonably requested by Parent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Becton Dickinson & Co)
Efforts. (a) Subject to the terms and conditions set forth herein and to applicable Legal Requirements, each of the parties to this Agreement, the Purchaser Agreement and the Seller their Subsidiaries and Affiliates shall cooperate and use their its respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actionsappropriate action, and do, or cause to be done, and assist and cooperate with the other parties to this Agreement, including their Subsidiaries and Affiliates, in doing, all things necessary, proper or advisable to cause the conditions to the Closing set forth in Article IX to be satisfied as promptly as reasonably practicable or to effect the Closing and to consummate and make effective, in effective the most expeditious manner transactions contemplated hereby as promptly as reasonably practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect making all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including Filings with respect to any Permits, including Environmental Permits)Governmental Authorities or third parties, (ii) obtaining all Consents (including with respect to any Permitsnecessary, including Environmental Permits) from proper or advisable Consents, registrations, notices and applications as required by any Governmental Authority or third party applicable Legal Requirement or as required by any Contract, lease or agreement, including those disclosed in Schedule 4.13(a) of the Company Disclosure Schedules and Schedule 9.1(b), (iii) obtaining the Required Company Statutory Approvals and all other Consents of Governmental Authorities that are necessary or proper to consummate the Merger, and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)Merger.
(b) Each In furtherance and not in limitation of the parties hereto agrees foregoing, each of Parent, the Company, and the Securityholders shall make or cause to (i) make an appropriate filing be made any required filings of a Notification Notice and Report Form pursuant to the HSR Act and any other necessary Filings with respect Governmental Authorities within ten (10) Business Days after the date hereof, including, but not limited to, any required foreign Antitrust Law or foreign direct investment Filings. Parent, the Company, and the Securityholders each shall, and shall cause its Subsidiaries and controlled Affiliates to, (a) promptly supply the other party with any information which may be required in order to effectuate such filings; (b) respond as promptly as practicable to any inquiry received from FTC, DOJ, or any other Governmental Authority for additional information or documentation; and (c) take all other actions necessary or desirable to cause the Transactions (which shall request the early expiration or termination of any the applicable waiting period applicable to the Transactions periods under the HSR Act) Act and any required notification under any other applicable Antitrust Laws as promptly as reasonably practicable following practicable. Each of Parent, the date Company, and the Securityholders shall (i) promptly notify the other party of this Agreementany material communication between that party and FTC, DOJ, or any other Governmental Authority and, subject to applicable Legal Requirements, discuss with and permit the other party to review in advance any proposed written communication to any of the foregoing; (and ii) consult with the other party in advance of participating in any event meeting or discussion with FTC, DOJ, or any other Governmental Authority with respect to filings made any filing, investigation or inquiry concerning the transactions contemplated hereby and, to the extent permitted by such Governmental Authority, give the other party the opportunity to attend and participate thereat; and (iii) subject to applicable Legal Requirements, furnish the other party with copies of all written correspondence and communications between it or its Affiliates and their respective Representatives and any Governmental Authority with respect to the transactions contemplated by this Agreement; provided, however, that materials provided to the other party pursuant to this Section 6.10(b) may be redacted (x) to remove references concerning valuation or future plans for the HSR Act within ten Business, (10y) calendar daysas necessary to comply with contractual obligations of confidentiality and (z) as necessary to address reasonable privilege concerns; provided, providedfurther, that the obligation parties may, as they deem advisable, designate any competitively sensitive materials provided to make such filings the other under this Section 6.10 or any other Section of this Agreement as "outside counsel only." Such materials and the information contained therein shall be automatically extended on a day-for-day basis given only to outside counsel for each calendar day during which filings canthe recipient and will not be submitted due disclosed by such outside counsel to a United States federal government shutdown following employees, officers, or directors of the date recipient without the prior written consent of this Agreementthe party providing such materials. Subject to Section 6.10(c), and upon the terms and conditions set forth herein, each of the parties shall use reasonable best efforts to take, or cause to be taken, such actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, such things, necessary, proper or advisable to make effective the transactions contemplated hereby, including obtaining confirmation of the expiration or termination of any applicable waiting periods under the HSR Act, clearances and approvals, if any, from the Governmental Authorities set forth in Schedule 9.1(b), resolving any investigation or other inquiry of any Governmental Authority, providing supplemental information requested by a Governmental Authority, avoiding any suit, Claim, action, investigation or proceeding of any Governmental Authority arising from its review of the transactions contemplated hereby and defending any suit, Claim, action or proceeding initiated by any Governmental Authority or Third Party under applicable Antitrust Laws for the purpose of preventing the consummation of the of the transactions contemplated hereby. Parent, the Company, and the Securityholders each shall be responsible for paying one-half (ii1/2) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant of each of the respective filing fees required to complete each of the merger filings under the HSR Act and such any other Antitrust Laws of any jurisdiction where a filing is required in accordance with this Section 6.10(b) in connection with the transactions contemplated hereby.
(c) Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall require or obligate Parent or any of its Affiliates to, and neither the Company nor its Affiliates or Representatives shall, without the prior written consent of Parent: (i) commence any litigation with any Governmental Authority or third party; (ii) commit, agree or otherwise become subject to promptly take any restriction, condition, limitation or other understanding on or with respect to the operation of the business of Parent or any of its Affiliates or the business of the Company that would be material to the business of Parent, its Affiliates and all steps necessary to avoid the Company, taken as a whole; (iii) agree or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may otherwise be required by to license, sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of any foreign business, assets or U.S. federaloperations of Parent or any of its Affiliates or the business of the Company that would be material to the business of Parent, state its Affiliates and the Company, taken as a whole; or local Governmental Authority(iv) pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material Liability or other obligation, in each case connection with competent jurisdiction so as obtaining any Consent, Permit or Order. For the avoidance of doubt, the matters disclosed on Schedule 6.2(b)(v)(A) shall not be prevented by this Section 6.10(c).
(d) Neither Parent nor the Company, including their respective Subsidiaries and Affiliates, shall, without the prior written consent of the other party (not to enable be unreasonably withheld, delayed or conditioned), enter into any Contract, including any timing agreement, with any Governmental Authority (i) that would, or would reasonably be expected to, delay the parties hereto Closing beyond the End Date or (ii) not to consummate effect the Transactions as promptly as reasonably practicable and in any event prior to Closing before a date that is after the Termination End Date.
(ce) Without limiting the foregoing, the Purchaser and the Seller shallin no event shall Parent effect, and shall cause their respective or permit any of its Subsidiaries or controlled Affiliates to useeffect, reasonable best efforts any transaction, or enter into any agreement to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, providedeffect any transaction (including any merger or acquisition), that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not would reasonably be required expected to (i) proffer or consent to a Judgment or consent order providing for impose any material delay in the sale or other dispositionobtaining, or materially increase the holding separaterisk of not obtaining, of particular assets, categories of assets the expiration or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other applicable Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, Laws; (ii) keep materially increase the other parties hereto informed in all material respects and on a reasonably timely basis risk of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC seeking or such other applicable Governmental Authority entering any injunction or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and decree prohibiting the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of transactions contemplated by this Agreement, ; (iii) subject materially increase the risk of not being able to Seller’s indemnification obligations with respect to remove any Non-Legacy Environmental Liabilities under Section 10.02(b), such injunction or other order or decree on appeal or otherwise; or (Aiv) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and prevent the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in transactions contemplated by this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Inotiv, Inc.)
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, the Purchaser Parties shall, and the Seller shall cause their respective Affiliates to, use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under any applicable Law to consummate and make effective, in effective as promptly as reasonably practicable the most expeditious manner practicable, transactions contemplated by this Agreement and the Transactionsother Transaction Documents, including (i) preparing the preparation and filing promptly and fully of all documentation to effect all necessary filings, notices, petitions, statementsforms, registrations, submissions of information, applications Filings and other documents notices required to be filed to satisfy the conditions precedent to this Agreement (including with respect those set forth in Section 11.1) and to any Permits, including Environmental Permits)consummate the transactions contemplated by this Agreement as soon as practicable, (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions execution and (iii) executing and delivering delivery of any additional instruments necessary to consummate the Transactions, in transactions contemplated by this Agreement and to fully carry out the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date purposes of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (iiiii) supply as promptly as reasonably practicable any additional information obtaining necessary waivers, consents and documentary material that may be requested pursuant to approvals from applicable third parties required under Section 3.4 of the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Georgia Disclosure Schedules. Without limiting the foregoing, the Purchaser (x) Georgia and the Seller Florida shall, and shall cause their respective Affiliates to, with respect to useRegulatory Approvals required for the closing of the Purchased Entity Sale (the “Purchased Entity Sale Regulatory Approvals”), and (y) Georgia, Washington and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Chicago in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Chicago (or the applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and the Purchased Entity (and its Subsidiaries), on the one hand, and Florida, on the other hand, shall cooperate in good faith with the other Party (or its legal counsel) to satisfy all applicable Governmental Authorities required obligations in relation to Purchased Entity Sale Regulatory Approvals. Each of Georgia, on the one hand, and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser Florida and Washington (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred EntitiesSubsidiaries), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businessesother hand, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult cooperate in good faith with the Seller regarding such strategyother Party and Chicago (or their respective legal counsels) to satisfy all required obligations in relation to Washington Sale Regulatory Approvals. Chicago is hereby expressly made a third-party beneficiary of Section 8.1(a).
(b) The Parties shall not, and (ii) coordinate shall cause their respective Affiliates not to, take any action after the overall development date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary to be obtained prior to the Closing. Without limiting the foregoing, Georgia, Washington and Florida shall not, and shall cause their respective Affiliates not to, acquire or enter into a definitive agreement to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be obtained to satisfy the conditions set forth in Section 11.1(a). The Parties shall not, without the prior written consent of all of the positions to be taken and the regulatory actions to be requested in any filing Parties, extend or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to offer or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Regulatory Law or other Law under which a Regulatory Approval is required, or enter into a timing any agreement with any Governmental AuthorityEntity related to this Agreement, without the prior written consent of the other partyTransaction Documents or the transactions contemplated by this Agreement.
(ec) Each Prior to the Closing, the Parties shall each keep the other reasonably apprised of the parties hereto status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, (x) subject to the Confidentiality Agreement and Section 6.2, with respect to the Purchased Entity Sale Regulatory Approvals, Georgia and the Purchased Entity, on the one hand, and Florida, on the other hand, and (y) subject to the Confidentiality Agreement and Section 7.2, with respect to the Washington Sale Regulatory Approvals, Georgia, on the one hand, and Florida and Washington, on the other hand, shall use its reasonable best efforts to (i) cooperate promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all respects Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or material correspondence with, a Governmental Entity, in each other case, in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow such Regulatory Approval; (ii) promptly inform the other party Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any material communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding such Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review such filing, submission, or substantive written communication and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication with any such other party Governmental Entity in connection with such Regulatory Approval; (iv) if such Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such filingRegulatory Approval, submissionthen such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by the applicable Governmental Entity, or substantive written communication, (ii) keep the other parties hereto informed not participate in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or meeting with any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding by a private Personsuch Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other conversations) unless it consults with the other Party in each case regarding any of the Transactionsadvance and, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicablenot prohibited by such Governmental Entity or any applicable Law, consult with gives the other parties hereto with respect to information relating to Party the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate inthereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, substantive in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that a Party may, as it deems advisable and necessary, reasonably designate portions of correspondence or Filings that contain sensitive personal data or commercially sensitive information relating to such Party or its controllers or control persons as “outside counsel only,” which such portions shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel, and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Business, Washington Business, Business Sale Process or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Chicago with respect to the Regulatory Approvals (as defined in the Chicago Transaction Agreement) required to be obtained under the Chicago Transaction Agreement, and shall require the Parties and Chicago to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Chicago Transaction Agreement in the manner set forth in this Section 8.1(c) (other than the right to participate in meetings and conferencesunder the foregoing clause (v)). Chicago is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Washington or its Affiliates or Representatives (other than Florida) and/or secure the participation of Washington or its Affiliates or Representatives (other than Florida) in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(fd) Without limiting the foregoing, (i) the Parties shall, and shall cause their respective Affiliates to, file, as promptly as practicable notifications under the HSR Act; (ii) Georgia and Florida shall, and shall cause their respective Affiliates to, file as promptly as practicable following the date of this Agreement, any other Filing required to obtain any other Purchased Entity Sale Regulatory Approvals; and (iii) Georgia, Florida and Washington shall, and shall cause their respective Affiliates to, file as promptly as practicable, following the date of this Agreement, any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the obligations foregoing, and notwithstanding anything in this Agreement to the contrary, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Purchased Entity Sale and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Purchased Entity Sale, so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 7.01(a11.1(a)(i) and otherwise Section 11.1(a)(ii), subject to the terms of the remainder of this Section 7.018.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Purchased Entity Sale, Florida shall direct the Seller timing of proffering and agreeing to the Purchaser remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 8.1(e), and further subject to consulting in good faith with Georgia prior to making any such timing decisions. With respect to the Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Purchased Entity Sale, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use their respective reasonable best efforts (including proffering and agreeing to obtain approval from FERC pursuant the remedies set forth in this Section 8.1(e)) to Section 203 resolve such objections of the FPA applicable Governmental Entities at both (i) their initial stage of review in order to consummate mitigate the Transactions. The Purchaser risk of referral of the Purchased Entity Sale by such applicable Governmental Entities to an in-depth investigation or review, and its Affiliates shall reasonably cooperate and consult with (ii) in the Seller and its Affiliates in event of such effortsreferral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the execution ofapproval of the Purchased Entity Sale by such applicable Governmental Entities prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Florida shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein (each, a “Divestiture Remedy”) of the Business and/or of Florida or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or consenting toother impairment of Florida’s and/or the Purchased Entity’s or its Subsidiaries’ ability to own, FPA Section 203-related applications retain, manage or submissions operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Florida’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with FERCrespect to ownership interests in the Business and/or of Florida or its Subsidiaries; provided, including however, that, notwithstanding any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date other provisions of this Agreement. The Purchaser , neither Florida nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Florida and its Affiliates shall make all necessary post-Subsidiaries (including for this purpose, the Purchased Entity and its Subsidiaries) from and after the Closing filings (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Florida and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with its Subsidiaries from and after the Company Sites located in Pedricktown, New Jersey, (i) Closing were collectively the parties acknowledge that same size as the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., Business as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, (iii) subject none of Georgia, Florida or their respective Affiliates shall be obligated to Seller’s indemnification obligations take or agree or commit to take any action in connection with respect obtaining the Purchased Entity Sale Regulatory Approvals that is not conditioned on the Closing. Additionally, in connection with obtaining the Purchased Entity Sale Regulatory Approvals, Georgia and its Affiliates shall not be obligated to, and none of the Parties shall take or agree or commit to take any action that relates to any Non-Legacy Environmental Liabilities under Section 10.02(b)Excluded Assets or Retained Businesses. In addition, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its AffiliatesFlorida and, to the extent permitted under ISRAapplicable, will provide a self guarantee Washington, shall defend through litigation on the merits any claim asserted in lieu of such required source court or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control before any Remedial Action with respect to other Governmental Entity by any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that would prevent the performance Closing of their respective obligations under this Section 7.01.the Purchased Entity Sale by the Outside Date, including by pursuing all a
Appears in 1 contract
Sources: Transaction Agreement (Fidelity National Information Services, Inc.)
Efforts. (a) Subject to On the terms and subject to the conditions of contained in this Agreement, during the Purchaser and Interim Period, the Seller shall Parties will use their respective reasonable best efforts to (unless, with respect to any action, another standard of performance is expressly provided for hereini) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable to cause consummate and make effective the conditions to the Closing to be satisfied Transactions as promptly as practicable and in any event prior to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)Outside Date, (ii) obtaining all Consents (including with respect to execute any Permitsdocuments, including Environmental Permits) from instruments, or conveyances of any Governmental Authority or third party necessary, proper kind that may be reasonably necessary or advisable to consummate carry out the Transactions Transactions, and (iii) executing and delivering any additional instruments necessary to consummate cooperate with each other in connection with the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)foregoing.
(b) Each In furtherance and not in limitation of the parties hereto agrees to terms of Section 6.1(a), each of the Parties (i) make an appropriate filing of will file, or cause to be filed, a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement as soon as reasonably practicable (which shall and in any event within twenty (20) Business Days) after the date hereof, and in such filing will request the early termination of any the applicable waiting period applicable to the Transactions under the HSR Act, (ii) and will make, or to cause to be made, any filing or notification that may be required notification under any other applicable Antitrust Laws Law as promptly as reasonably practicable practical following the date of this Agreement, and (iii) will cooperate in connection with any filing under applicable Antitrust Law and in connection with resolving any event investigation or other inquiry concerning the transactions contemplated by this Agreement commenced by any Governmental Body, including the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice or the office of any state attorney general. Each Party will promptly (i) supply the other with respect any information which may be required in order to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make effectuate such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that which reasonably may be requested pursuant required by a Governmental Body of any jurisdiction and which the Parties may reasonably deem appropriate. The Buyer Parties, on the one hand, and the Seller Parties, on the other hand, may, as each of them deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Party under this Section 6.1(b) as “outside counsel only.” Such materials and the information contained therein will be given only to the outside legal counsel of the receiving Party, and such receiving Party will cause its outside counsel not to disclose such materials or information to any partners, members, directors, managers, officers, employees or other Representatives of the receiving Party, unless express written permission is obtained in advance from the disclosing Party. No Party will independently participate in any meeting, or engage in any substantive conversation, with any Governmental Body in respect to any such filings, investigation or other inquiry without giving the other Party prior notice of the meeting or conversation, and unless prohibited by such Governmental Body, the opportunity to attend or participate. The Parties will consult and cooperate with one another, and consider in good faith the comments of the other, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with any Legal Proceeding under or relating to the HSR Act and such or other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to Law. Each Party will (i) proffer or consent to a Judgment or consent order providing for give the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business Party prompt notice of the Transferred Entities (including the termination commencement or threat of commencement of any existing relationships or contractual rights of Legal Proceeding with respect to the Transferred Entities)transactions contemplated by this Agreement, (ii) proffer or consent keep the other Parties reasonably informed as to any other restriction, prohibition or limitation on the ownership or operation status of any of such assets or lines of businessesLegal Proceeding, or and (iii) proffer promptly inform the other Parties of any communication to or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection Body regarding the transactions contemplated by this Agreement and promptly provide the other with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, copies of any written communications and (ii) coordinate the overall development material details of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection oral communications with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to Body regarding the Transactions and of all other regulatory matters incidental theretotransactions contemplated hereby. Neither the Purchaser Parent nor the Seller shall commit to or agree with any Governmental Authority Body to enter into any timing agreement, to stay, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Law, pull and refile under the HSR Act or other applicable Antitrust Law, or agree or commit to agree not to consummate the transactions contemplated herein for any other Antitrust Laws or enter into a timing agreement with any Governmental Authorityperiod of time, without the prior written consent of the other partyother.
(ec) Each In furtherance and not in limitation of the parties hereto shall use its reasonable best efforts to (iterms of Sections 6.1(a) and 6.1(b), the Parties will cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall will use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsensure that no Governmental Body enters any Court Order or establishes any Legal Requirement or initiates any Legal Proceeding temporarily, including the execution ofpreliminarily or permanently restraining, enjoining or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and prohibiting the consummation of the Transactions will requiretransactions contemplated hereby, and the parties shall reasonably cooperate with respect to, compliance to ensure that no Governmental Body with the New Jersey Industrial Site Recovery Actauthority to clear, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and authorize or otherwise approve the consummation of the Transactions), including causing transactions contemplated hereby fails to do so by the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to PurchaserOutside Date.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Asset Purchase (Sweetgreen, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller Parties shall, and each shall cause their respective controlled Affiliates to, use their respective commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, effective the Transactions, in each case as promptly as reasonably practicable, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permitsdocuments, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions Transactions, including, without limitation, all Conforming Estoppels, SNDAs, and Transferred Real Property Lease Consents, provided, in connection with any third party Consent and except as expressly set forth in this Agreement, that no member of the Seller Group shall be required to pay any consideration to or out of pocket costs of or to the third party therefor, commence, defend or participate in any Action in connection therewith or offer or grant any accommodation (iiifinancial or otherwise) to any third party in connection therewith, executing and delivering any additional instruments necessary to consummate the Transactions and defending or contesting in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iiiiv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)Purchased Assets, Manufacturer Consents or Transferred Interests, which are dealt with in Section 2.04.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions within ten (which shall request 10) business days following the early termination of any waiting period applicable to date hereof (unless the Transactions under the HSR Actparties otherwise agree) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to use their respective commercially reasonable efforts to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a wholepracticable. For the avoidance of doubt and notwithstanding Notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement7.01, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategypromptly take, and (ii) coordinate the overall development of the positions or cause to be taken taken, any and all actions necessary to secure the regulatory actions to be requested in any filing expiration or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and termination of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act (“HSR Approval”) or any other Antitrust Laws Law or enter into a timing agreement any other Consent under Antitrust Laws, and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, without in order to prevent the prior written consent entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) executing settlements, undertakings, consent decrees, stipulations or other partyagreements with any Governmental Authority or with any other Person, selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of the Purchaser or any of its Affiliates (including, after the Closing, any Transferred Entities and Purchased Assets), agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Purchaser or any of its Affiliates (including, after the Closing, any Transferred Entities and Purchased Assets), terminating existing relationships, contractual rights or obligations of the Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities), terminating any joint venture or other arrangement, creating any relationship, contractual right or obligation of the Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) or effectuating any other change or restructuring of the Purchaser or any of its Affiliates (including, after the Closing Date, the Transferred Entities) (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of actions by or with respect to the Seller Parties, by consenting to such action by the Seller Parties (including any Consents required under this Agreement or the other Transaction Documents with respect to such action); provided that any such action may be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. No actions taken pursuant to this Section 7.01 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur.
(ec) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and allow the other party parties to review such filing, submission, or substantive written communication in advance, advance and consider in good faith the views of such the other party parties with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”), FERC DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports4(c) documents” as those terms are that term is used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive such meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(hd) Notwithstanding anything to the contrary in this Agreement, the Seller Parties and its their respective Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties to this Agreement shall (and the Seller shall cause each of their Affiliates to) use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Mergers and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods, applications including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all consents, approvals or waivers from third parties required to be obtained in connection with the Mergers, including the obtaining by the Company of all necessary consents of the lenders party to the Credit Agreement to the consummation of the Mergers and the other documents transactions contemplated by this Agreement; and (including iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Company, or any of their respective Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract (with the exception of any filing fee, or similar, payable to any Governmental Entities with respect to the Specified Approvals or Parent Approvals).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties shall (and shall cause their Affiliates to) (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any Permitsand all required notification and report forms under the HSR Act, including Environmental Permits)and file as promptly as practicable any other required filings and/or notifications under other applicable Antitrust Laws or Foreign Investment Laws listed in Section 4.3(b) of the Company Disclosure Letter and Section 5.3(b) of the Parent Disclosure Letter, with respect to the Mergers and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act or any other Antitrust Law or Foreign Investment Laws; (ii) use their reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (y) promptly making all such filings and timely obtaining all Consents such consents, permits, authorizations or approvals; (including with respect iii) supply to any PermitsGovernmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law; and (iv) use their reasonable best efforts to take, including Environmental Permits) from any Governmental Authority or third party cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of transactions contemplated by this Agreement, . Company and Parent shall not (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Subsidiaries and Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliatesnot to) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under any Antitrust Law, enter into or extend a timing agreement with any Governmental Entity or withdraw or refile any filing under the HSR Act or any other Antitrust Laws Law or enter into a timing agreement with any Governmental AuthorityForeign Investment Law, without the prior written consent of the other party.
(ec) Each If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or Foreign Investment Law or if any Action is instituted by any Governmental Entity or any private party challenging any of the parties hereto transactions contemplated hereby as violative of any Antitrust Law or Foreign Investment Law, each of Parent and Company shall (and shall cause each of their Affiliates to) (i) oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), and/or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), including by defending any Action brought by any Governmental Entity in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal up to a final non-appealable order if necessary, in order to resolve any such objections or challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law or Foreign Investment Law so as to permit consummation of the transactions contemplated by this Agreement.
(d) Without limiting the foregoing, ▇▇▇▇▇▇ agrees to (and shall cause its Affiliates to) use its reasonable best efforts efforts, and agrees to take (and shall cause its Affiliates to take), any and all actions to avoid and, if necessary, eliminate, each and every impediment under any Antitrust Laws or Foreign Investment Laws that may be asserted by any person, so as to enable the Closing to occur no later than the End Date, including but not limited to proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise: (i) the sale, divestiture or disposition of, any assets, products, businesses or interests of the parties (or their respective Affiliates); (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, products, businesses or interests; (iii) any modification or waiver of the terms and conditions of this Agreement; or (iv) take any other action that limits the freedom of action with respect to, or the ability to retain, any assets, products, businesses or interests of Parent or any of its Affiliates in order to avoid the entry of or to effect the dissolution of any order or Action (whether temporary, preliminary or permanent), or that would otherwise have the effect of preventing or delaying the consummation of the Mergers and the other transactions contemplated by this Agreement; provided, however, that nothing in this Agreement shall require Parent or Parent’s Subsidiaries to propose, execute, carry out, or agree or submit to any action or remedy that individually or in the aggregate would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of (x) Parent and Parent’s Subsidiaries (taken as a whole prior to the Closing) or (y) the Company and the Company’s Subsidiaries (taken as a whole).
(e) Without limiting the foregoing, Parent and Company shall not, and shall cause their Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, or take or cause to take any action, if doing so would reasonably be expected to: (i) impose any material delay in the obtaining of, or increase the risk of not obtaining, consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and secure the Specified Approvals or Parent Approvals; (ii) materially delay the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of any Governmental Entities entering a judgment prohibiting the consummation of the transactions contemplated by this Agreement; (iv) materially increase the risk of not being able to remove any such judgment on appeal or otherwise; or (v) otherwise materially impair or delay the ability of any Parent Party to perform its material obligations under this Agreement.
(f) The parties shall (and shall cause their Affiliates to) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 6.10; and, submission or substantive written communication with a subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, Company, on the Transactions one hand, and in connection with any investigation or Parent, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies (or, in the case of oral communications, summaries) of notices or other material communications received by Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Company, on the one hand, and Parent, on the other hand, shall to the extent practicable permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any substantive written communications or submissions, and with respect to any such notification, filing, written communication or submission, or substantive written communicationany documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (iix) keep to remove references concerning the other parties hereto informed in all material respects valuation of the businesses of Company and on a reasonably timely basis of any material communication received by such party fromits Subsidiaries, or given by such party to, the Antitrust Division proposals from third parties with respect thereto; (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations; and (z) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Company and its operations. Each of the Department parties agrees not to (and to cause each of Justice (the “DOJ”)their Affiliates not to) participate in any substantive meeting or discussion, the Federal Trade Commission (the “FTC”)either in person or by telephone, FERC or with any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding the transactions contemplated by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult this Agreement unless it consults with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiariesin advance and, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited or required otherwise by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and party or if advisable the reasonable other party’s outside counsel the opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Dril-Quip Inc)
Efforts. (a) 6.9.1 Subject to the terms and conditions of this Agreement, each of the Purchaser Parties shall cooperate with each other and the Seller each use (and shall use cause their respective Subsidiaries to use) their reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties Party in doing, all things reasonably necessary under Applicable Law to consummate the Merger as promptly as practicable, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties, and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Company paying, any material cash consideration to any Third Party from whom consent or approval is required (other than filing fees payable to Governmental Entities).
6.9.2 In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) promptly and in any event within 30 Business Days of the date hereof prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary, proper or advisable to cause the conditions to the Closing to be satisfied obtain SARB Approval, (ii)
(A) submit, as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each event within 30 Business Days of the parties hereto agrees date hereof, to (i) make an appropriate filing of CFIUS a Notification and Report Form pursuant to the HSR Act draft joint voluntary notice under Exon-▇▇▇▇▇▇ with respect to the Transactions Merger, (which shall request the early termination of any waiting period applicable to the Transactions under the HSR ActB) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementthereafter, (and in any event file with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on CFIUS a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)final joint voluntary notice, and (iiC) supply as promptly as reasonably practicable any additional information and documentary information or material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that CFIUS review process within the Purchaser shall consult in good faith with the Seller regarding such strategyamount of time allowed by CFIUS, and (iiiii) coordinate cooperate with the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority other Parties in connection with the Transactions any such filings or notifications, and in connection with resolving any investigation or other inquiry of any Governmental Entity in relation to such filings or litigation by notifications, including the U.S. Department of Justice or before, or any negotiations with, a Governmental Authority the U.S. Federal Trade Commission under the HSR Act.
6.9.3 Subject to Applicable Law relating to the Transactions exchange of information, the Company and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller Parent and their respective counsel shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with determining whether any filingaction by or in respect of, submission or substantive written communication with a filing with, any Governmental Authority Entity is required, in connection with the Transactions consummation of the Merger and seeking any such actions, consents, approvals or waivers or making any such filings, (ii) furnish to each other all information required for any application or other filing under the rules and regulations of any Applicable Law in connection with any investigation or the transactions contemplated by this Agreement (including in connection with CFIUS Clearance), (iii) provide each other inquiry by or before with a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party reasonable advance opportunity to review such filing, submission, or substantive written communication in advance, and comment upon and consider in good faith the views of such the other party in connection with respect all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to such filing, submission, proceedings under the HSR Act or substantive written communicationin connection with CFIUS Clearance) with a Governmental Entity in connection with the transactions contemplated hereby, (iiiv) keep the promptly inform each other parties hereto informed in all material respects and on a reasonably timely basis of any material communication (or other material correspondence or memoranda) received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Acttransactions contemplated hereby, and (ivv) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent permitted by practicable, provide the FTCother Party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, the DOJ, FERC or such other applicable Governmental Authority investigation or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth inquiry in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located transactions contemplated hereby (including in Pedricktownconnection with CFIUS Clearance).
6.9.4 Notwithstanding anything else contained herein, New Jersey, (i) the parties acknowledge that the execution of this Agreement Parent and the consummation of the Transactions will requireits Subsidiaries shall take, and the parties shall reasonably cooperate cause to be taken, all steps necessary to avoid or eliminate any impediment under Applicable Law that may be asserted by a Governmental Entity with respect to, compliance with and to satisfy all conditions to the New Jersey Industrial Site Recovery Actconsummation of, N.J.S.A. 13:1K-6 et seq.the Merger; provided, however, that neither Parent nor any of its Subsidiaries shall be required to, and the regulations promulgated pursuant theretoCompany shall not, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)without the prior written consent of Parent, (iix) in connection with efforts to obtain the Seller shall complete and file expiry or early termination of any applicable waiting period (or any extensions thereof) under the HSR Act or to obtain SARB Approval, offer, propose, agree or commit (i) to sell, divest, hold separate, license, cause a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days Third Party to acquire or otherwise dispose of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation any of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, respective Affiliates of the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.Parent or
Appears in 1 contract
Sources: Agreement and Plan of Merger (Stillwater Mining Co /De/)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and reasonably necessary under Applicable Law to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions, noticeswaivers, petitionsconsents and approvals from Governmental Authorities, statementsthe expiry or early termination of any applicable waiting periods, registrations, submissions and the making of information, applications all necessary registrations and other documents filings (including filings with respect Governmental Authorities, if any) and the taking of such commercially reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Permits, including Environmental Permits)Governmental Authorities, (ii) the delivery of required notices to, and the obtaining all Consents of required consents or waivers from, Third Parties and (including with respect iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.11, each of Parent and the Company shall (i) prepare and file any Permitsnotification and report forms and related material required under the HSR Act, including Environmental Permits) from and any Governmental Authority additional filings or third party notifications and related material that are necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate permit consummation of the Transactions, as promptly as practicable (but in no event later than ten (10) Business Days from the case date of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of this Agreement for the parties hereto agrees to (i) make an appropriate filing of a Notification any notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions report forms and related material required under the HSR Act) and any required notification under any other Antitrust Laws except by mutual consent confirmed in writing), (ii) provide or cause to be provided as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to by the DOJ or FTC under the HSR Act and (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain expiration or termination of any applicable waiting period or other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate approval of consummation of the Transactions by the DOJ or FTC as promptly as reasonably practicable and in practicable, including to cause to be lifted any event prior restraint, injunction or other legal impediment to the Termination DateMerger.
(c) Without limiting Subject to Applicable Law relating to the foregoingexchange of information, the Purchaser Company and the Seller shall, Parent and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser counsel shall (i) control have the strategy for obtaining right to review in advance, and to the extent practicable each shall consult the other on, any Consents from material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, the overall development DOJ or the FTC and (iii) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or affiliates, on the positions one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to be taken the Transactions. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the regulatory actions opportunity to be requested participate in any filing material discussion or submission meeting with a any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental theretoTransactions. Neither the Purchaser Parent nor the Seller Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with other. The Company and Parent may, as each other in connection with deems advisable and necessary, reasonably designate any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all competitively sensitive material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating provided to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made 6.11 as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines“Antitrust Counsel Only Material.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this AgreementSection 6.11, materials provided to the Seller other party or its counsel may be redacted to remove references concerning the valuation of the Company and its Affiliates the Company Subsidiaries.
(d) Parent shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to have, except where prohibited by Applicable Law, responsibility for determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to antitrust matters. Nothing in this Agreement shall obligate Parent or other third party Merger Sub or any Subsidiary of Parent to, and the Company shall not and shall cause each Company Subsidiary to not, agree to limit in connection with any manner whatsoever (i) any rights of ownership of any securities (including the performance Shares), or to divest, dispose of or hold separate any securities or all or a portion of their respective obligations under this Section 7.01businesses, assets or properties or of the business, assets or properties of their respective Subsidiaries, or (ii) the ability of such entities (A) to conduct their respective businesses or own such assets or properties or to conduct the businesses or own the properties or assets of their respective Subsidiaries or (B) to control their respective businesses or operations or the businesses or operations of their respective Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Actuate Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective all commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and delivering the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated by this Agreement; provided, however, that in no event shall the case Company or any of each its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the transactions contemplated by this Agreement under any contract or agreement.
(b) Each Subject to the terms and conditions herein provided (including for the avoidance of doubt Section 5.1(a) of the parties hereto agrees to Company Disclosure Letter) and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) make an appropriate filing of a promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions (which Merger and the other transactions contemplated by this Agreement, and such filings Parent and the Company shall agree upon, and with respect to such filings, Parent and the Company shall request the early termination of any applicable waiting period applicable to the Transactions under the HSR Act, and use all commercially reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use all reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any required notification under any third parties or other Antitrust Laws as promptly as reasonably practicable following Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly, but in no event later than twenty (20) Business Days after the date hereof, making the filing under the Irish Competition Act of this Agreement2002 as amended, and under the Italian Competition Law (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar daysLaw No. 287/1990), provided, that the obligation Company, Parent and Merger Sub respond promptly to make any information requests regarding the preparation of such filings, and any other such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)and timely obtaining all applicable consents, and permits, authorizations or approvals, (iiiii) supply to any Governmental Entity as promptly as reasonably practicable any additional information and documentary material or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things reasonably necessary, proper or advisable to consummate and make effective the HSR Act transactions contemplated hereby, including taking all such further action as may be reasonably necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the transactions contemplated hereby, and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior to no later than the Termination End Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, ); provided, that notwithstanding anything to the contrary foregoing, nothing contained in this AgreementAgreement shall require or obligate Parent or any of its Subsidiaries or Affiliates to, and neither the Company nor any of its Subsidiaries shall, without the prior written consent of Parent, (x) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the Purchaser (and its Affiliates) shall not be required to (i) proffer sale, divestiture, licenses or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, disposition of particular any assets, categories products, rights, services, licenses or businesses of assets Parent or lines of business of such party, including assets its Subsidiaries or lines of business Affiliates or of the Transferred Entities Company or its Subsidiaries or any interest or interests therein or (y) otherwise take or commit to take any actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the termination Surviving Corporation’s) or Affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, products, services, rights, licenses, product lines or assets or any existing relationships interest or contractual rights interests therein if such action would (a) be reasonably likely to have a material adverse effect on the business, financial condition, properties, assets or results of operations of the Transferred Entities)Company and its Subsidiaries, (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, taken as a whole or (iiib) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to materially impair the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Businessbenefits, taken as a whole, Parent reasonably expected to derive from the Merger and the other transactions contemplated by this Agreement; and provided, further that neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. For Except as otherwise permitted under this Agreement (including for the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing5.1(a) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller Company Disclosure Letter), the Company, Parent and Merger Sub shall not include taking any of the Antitrust Remedial Actions.
(dand shall cause their Subsidiaries and Affiliates not to) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(ec) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 5.6, submission or substantive written communication with and subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall keep each other apprised on a Governmental Authority in connection with current basis of the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority status of matters relating to the Transactionscompletion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other material communications received by the Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or substantive written communicationproposals from third parties with respect thereto, (iiy) keep as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties hereto informed contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Company, Parent and Merger Sub shall cooperate in all material respects with each other and on shall use their respective commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a reasonably timely basis party’s right to terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, the Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, (i) of any material notice or other communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or from any Governmental Authority Entity in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used transactions contemplated by this Agreement or from any Person alleging that the consent of such Person is or may be required in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktowntransactions contemplated by this Agreement, New Jerseyif the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)Surviving Corporation or Parent, (ii) of any Actions commenced or, to such party’s knowledge, threatened against, relating to or otherwise affecting such party or any of its Affiliates in connection with, arising from or relating to this Agreement or the Seller shall complete and file a transactions contemplated by this Agreement (“General Information Notice” as defined under and in compliance with ISRA (the “ISRA FilingTransaction Litigation”) within five days of the date of this Agreement, or (iii) subject to Seller’s indemnification obligations if such party becomes aware of any facts or circumstances that such party believes do, or with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)the passage of time are reasonably likely to, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as constitute a result breach of this Agreement and by the consummation other party or the occurrence or non-occurrence, of any event that, individually or in the aggregate, would reasonably be expected to cause any condition to the obligations of any party hereto to effect the Merger or any of the Transactions), including causing the Company other transactions contemplated by this Agreement not to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance be satisfied; provided that the Purchaserdelivery of any notice pursuant to this Section 5.6(e) shall not cure any breach of any representation, warranty or covenant in this Agreement or otherwise limit or affect the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect remedies available hereunder to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserparty hereto.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Ancestry.com Inc.)
Efforts. (a) Subject Without prejudice to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1 and Section 3.6) and the Seller other Transaction Documents, each party shall use their respective its commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable desirable under Applicable Law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(d), use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (as determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents, or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and the other documents Transaction Documents (including with respect as may be required upon one or more exercises of Warrant Shares, and whether such approvals arise from Antitrust Laws or otherwise, or one or more sales of Warrant Shares), which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and advisable, such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other party in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents, or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the foregoing, as promptly as practicable after written notice from Amazon, and in any event no later than in accordance with established regulatory time frames, the parties hereto agrees to shall (i) make an appropriate filing of a file any Notification and Report Form pursuant to Forms required or advisable under the HSR Act with respect to the Transactions Federal Trade Commission and the United States Department of Justice and (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Actii) and any file, make or give, as applicable, all other filings, requests, or notices required notification or advisable under any other Antitrust Laws Laws, in each case with respect to the issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). In addition, following the receipt of the Initial Antitrust Clearance, to the extent required or advisable by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make, or give, as applicable, as promptly as reasonably practicable following and advisable (as determined in good faith by Amazon after consultation with the date Company in accordance with the first sentence of this AgreementSection 3.1(d)), (and in any event with respect to filings made pursuant to further filings, requests, or notices required under any Antitrust Laws, including the HSR Act within ten (10) calendar daysAct. Without limiting the generality of the foregoing, provided, that the obligation to make such filings each party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable to the appropriate Governmental Entities, and in any additional event no later than in accordance with established regulatory time frames, any information and documentary material that may be requested required pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Laws. For purposes of this Agreement, the term “Initial Antitrust Clearance” as of any time means (x) prior to such time, the expiration or enter into a timing agreement with any Governmental Authority, without the prior written consent termination of the other party.
(e) Each waiting period under the HSR Act and the receipt of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filingexemptions, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsauthorizations, including any proceeding initiated by a private person, allow the other party to review such filing, submissionconsents, or substantive written communication in advanceapprovals, the making of all filings and the giving of all notices, and consider in good faith the views expiration of such other party with respect all waiting periods, pursuant to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonAntitrust Laws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating to the other parties hereto and their respective SubsidiariesInitial Filing Transaction, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control absence at such time of any Remedial Action with respect to Applicable Law or Order issued by any Non-Legacy Environmental Liability required to comply with ISRAcourt of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in accordance with each case that has the terms effect of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserpreventing the consummation of any issuances of Warrant Shares.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser each of Parent, Merger Sub and the Seller Company shall use their respective commercially reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Law or Order to consummate and make effective, in effective the most expeditious manner Transactions as promptly as reasonably practicable, the Transactions, including (i) preparing and filing as promptly and fully as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), and (ii) obtaining and maintaining all Consents (including with respect approvals, consents, registrations, permits, authorizations and other confirmations required to any Permits, including Environmental Permits) be obtained from any Governmental Authority or third party other Third Party that are necessary, proper or advisable to consummate and make effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and (iii) executing and delivering other confirmations are Scheme Conditions); provided, however, that none of the Company, its Subsidiaries nor any additional instruments necessary to consummate the Transactionsof their respective Representatives shall provide notice to, in the case of each of clauses (i) through (iii)or request consent from, other than any Third Party with respect to filings, notices, petitions, statements, registrations, submissions this Agreement or the Transactions without first obtaining the prior written consent of information, applications and other Consents relating Parent (such consent not to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (dbe unreasonably withheld or delayed).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification The Company and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws Parent shall, as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to before the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination expiration of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicablerelevant legal deadline, but in no event later than ten (10) calendar days after Business Days following the date execution and delivery of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection file with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge United States Federal Trade Commission and the United States Department of Justice the notification and report form and accompanying materials, if any, required under the HSR Act for the transactions contemplated hereby, and (ii) any other Governmental Authority any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any applicable Competition Laws. Each of the Company and Parent shall furnish or cause to be furnished to each other’s respective counsel such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the execution HSR Act and any Competition Laws.
(c) The Company and Parent shall: (i) use their commercially reasonable efforts to promptly obtain any clearance required under the HSR Act and any Competition Laws for the consummation of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)transactions contemplated hereby, (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days keep each other apprised of the date status of this Agreementany communications with, and any inquiries or requests for additional information from, any Governmental Authority, and (iii) subject comply promptly with any such inquiry or request and supply to Sellerany Governmental Authority without undue delay any additional information requested. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall be required to consent to or make any divestiture or other structural or conduct relief in order to obtain clearance from any Governmental Authority, and the Company shall not agree to any divestiture or other structural or conduct relief without the prior written consent of Parent. Any such structural or conduct relief affecting the business, assets, or operations of the Company shall be conditioned upon the prior occurrence of the Scheme implementation.
(d) The Parties commit to instruct their respective counsel to cooperate with each other and use commercially reasonable efforts to facilitate and expedite the identification and resolution of any issues arising under the HSR Act and any Competition Laws at the earliest practicable dates. Such commercially reasonable efforts and cooperation include such counsel’s indemnification obligations undertaking (i) to keep each other appropriately informed of communications from and to personnel of the reviewing Governmental Authorities, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of such Governmental Authorities and the content of any such contacts or presentations. The Company and Parent shall not participate in any meeting or discussion with any Governmental Authority with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)such filings, (A) applications, investigation or other inquiry without giving the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation Party prior notice of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source meeting or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliatesdiscussion and, to the extent permitted under ISRAby the relevant Governmental Authority, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review attend and comment participate in advance on such filings and submissions) and meeting or material discussion (y) have which, at the right request of Parent or the Company, shall be limited to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaseroutside antitrust counsel only).
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser parties hereto shall, and the Seller shall cause its Subsidiaries to, use their respective its reasonable best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or to cause to be taken, all actions, and doto do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated hereby, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingswaivers, notices, petitions, statements, registrations, submissions of information, applications consents and other documents (including with respect to any Permitsapprovals, including Environmental Permits)the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents necessary consents, approvals or waivers from third parties and (including iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) use reasonable best efforts to cooperate with respect each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any Permitsthird parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, including Environmental Permitspermits, authorizations or approvals, (ii) from any Governmental Authority use reasonable best efforts to take, or third party to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions Merger and (iii) executing and delivering any additional instruments the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to consummate the Transactionsresolve such objections, in the case if any, as any state or federal regulatory authorities of each of clauses any other nation or other jurisdiction or any other Person may assert under Regulatory Law (ias hereinafter defined) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request Merger and the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)transactions contemplated hereby, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date (as hereinafter defined)), and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, use reasonable best efforts to keep each other apprised of the status of matters, including to the Termination Dateextent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity related to the approval of the Merger, allowing each other to review in advance any filing or written materials submitted to any Governmental Entity related to the approval of the Merger, and providing the other party and its counsel with advance notice of and, to the extent permitted by Law, the opportunity to participate in any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry related to the approval of the Merger.
(c) Without limiting the foregoing, the Purchaser and the Seller shallSubject to Section 5.10, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial Proceeding, including any Proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, each of the Company and Parent shall cause cooperate in all respects with each other and shall use their respective Affiliates to use, reasonable best efforts to cooperate contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in good faith with all applicable Governmental Authorities effect and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully that prohibits, prevents or restricts consummation of the Transactions prior to the Termination Date, Merger or any other transactions contemplated hereby; provided, that notwithstanding anything to however, that, without the contrary consent of Parent, nothing in this AgreementAgreement shall require Parent, the Purchaser (Company Agreement and its Plan of Merger -50- or the Surviving Corporation, or their respective Subsidiaries or Affiliates) shall not be required , to (i) proffer sell, hold separate or consent otherwise dispose of any assets or business, or any interest in any of their respective Subsidiaries or Affiliates, in whole or in part, or to conduct any aspect of their business in a Judgment specified manner, or consent order providing for to permit the sale sale, holding separate of, or other dispositiondisposition of, any assets or business, in whole or in part, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent agree to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (take any of the actions described foregoing actions, or to agree to any condition or to enter into any agreement to obtain such consent, registration, approval, Permit or authorization that, in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregatejudgment of Parent, would not reasonably be expected adverse to be material to Parent or the Business, taken as a wholeSurviving Corporation. For Notwithstanding the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 foregoing or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) nothing in this Section 5.6 shall be required limit a party’s right to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations terminate this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) so long as such party has, prior to such termination, complied with its obligations under this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions5.6.
(d) Nothing in For purposes of this Agreement shall require Agreement, “Regulatory Law” means any party to take and all Laws requiring notice to, filings with, or agree to take any action with respect to its business the consent or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from approval of, any Governmental Authority Entity, or that otherwise may cause any restriction, in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken Merger and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforetransactions contemplated thereby, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to including (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views ▇▇▇▇▇▇▇ Act of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to1890, the ▇▇▇▇▇▇▇ Antitrust Division Act of the Department of Justice (the “DOJ”)1914, the Federal Trade Commission (Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the “FTC”), FERC purpose or any other Governmental Authority and effect of any material communication received monopolization or given in connection with any proceeding by a private Person, in each case regarding any restraint of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, trade or written materials submitted to, any third Person lessening competition through merger or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)acquisition, (ii) any Law governing the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days direct or indirect ownership or control of any of the date operations or assets of this Agreement, the Company and its Subsidiaries or (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance Law with the terms purpose of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserprotecting the national security of any nation.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms and conditions date of this Agreement, the Purchaser and the Seller shall, and Purchaser and Seller shall use cause their respective Affiliates to, use reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under any applicable Law to consummate and make effective, effective in the most expeditious manner practicablepossible (and, in any event, prior to the TransactionsOutside Date) the Transaction and the other transactions contemplated by this Agreement, including including:
(i) preparing the preparation and filing promptly of all forms, registrations and fully all documentation notices required to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications be filed to consummate the Transaction and the other documents transactions contemplated by this Agreement as soon as practicable and advisable (including and with respect to any Permitsnotifications required under the HSR Act and the ICL, including Environmental Permitsto the extent required, within twenty (20) Business Days after the date of this Agreement), and
(ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions execution and (iii) executing and delivering delivery of any additional instruments necessary to consummate the Transactions, in Transaction and the case of each of clauses (i) through (iii), other than with respect transactions contemplated by this Agreement and to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of fully carry out the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date purposes of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) . Without limiting the foregoing, and subject to the limitations set forth in the proviso to Section 5.1(d), Purchaser and the Seller shall, and Purchaser and Seller shall cause their respective Affiliates to useto, use reasonable best efforts to cooperate in good faith with take, or cause to be taken, all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions necessary to obtain any Antitrust Approvals required to complete lawfully satisfy the Transactions prior conditions set forth in Section 7.1(a) or Section 7.1(b) (in the case of Section 7.1(b), if the Judgment relates to any Antitrust Law) and to consummate the Termination DateTransaction and the other transactions contemplated by this Agreement. Additionally, provided, that notwithstanding anything to and without limiting the contrary specific other obligations of the Parties set forth in this Agreement, the each of Purchaser (and its Affiliates) Seller shall, and Purchaser and Seller shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its cause their respective Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant fulfill all conditions precedent to Section 203 this Agreement and shall not take, or permit any of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsto take, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days action after the date of this AgreementAgreement that would reasonably be expected to prevent, impair or materially delay the obtaining of any Antitrust Approval necessary to be obtained prior to the Closing. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located Notwithstanding anything in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and to the consummation of contrary, neither Purchaser nor Seller, without the Transactions will requireother Party’s prior written consent, and the parties shall reasonably cooperate with respect toenter into any timing, compliance with the New Jersey Industrial Site Recovery Actsettlement or similar agreement, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect or otherwise agree or commit to any Non-Legacy Environmental Liabilities under Section 10.02(b)arrangement, (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall that would:
(x) make all have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transaction or the other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of transactions contemplated by this Agreement and under the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish HSR Act or any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and applicable Antitrust Laws; or
(y) have bind or commit the right Parties not to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with complete the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything Transaction or the other transactions contemplated by this Agreement on or prior to the contrary in Outside Date (or that would otherwise prevent or prohibit the Parties from completing the Transaction or the other transactions contemplated by this Agreement, Agreement on or prior to the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01Outside Date).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (PERRIGO Co PLC)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective reasonable its best efforts (unlesssubject to, with respect to any actionand in accordance with, another standard of performance is expressly provided for hereinapplicable Law) to promptly taketake promptly, or cause to be taken, all actionsactions necessary, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the Transactionsother transactions contemplated by this Agreement, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsconsents, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)approvals or waivers from third parties, (ii) obtaining all Consents the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (including with respect iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company or any of their Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any Permitsthird party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Without limiting the foregoing, and notwithstanding anything contained in this Agreement to the contrary, Parent agrees to use its best efforts, and to take promptly any and all steps necessary, to avoid and, if necessary, eliminate, each and every impediment under any Regulatory Law (as hereinafter defined) that may be asserted by any Governmental Entity (through the head of the Governmental Entity or division thereof), so as to enable the Closing to occur as soon as possible (and in any event no later than the End Date (as hereinafter defined)), including, but not limited to, (i) providing information, (ii) proposing, negotiating, committing to and/or effecting, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of, or holding separate (through the establishment of a trust, proxy agreement, special security agreement, voting trust agreement or otherwise) such of Parent’s (or any of its affiliates’) assets, properties or businesses or of the Company’s (or any of its affiliates’) assets, properties or businesses to be acquired by Parent pursuant hereto, and the entrance into such other arrangements, in each case, as are necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or to effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transaction contemplated by this Agreement prior to the End Date; (iii) creating, terminating, or divesting relationships, ventures, contractual rights or obligations, including Environmental Permitsentering into, or offering or committing to enter into any supply agreements involving Parent’s (or any of its affiliates’) from or the Company’s products or restrictions on Parent’s (or any of its affiliates’) or the Company’s businesses requested by any Governmental Authority Entity, in each case, as are necessary to obtain an approval or third party waiver from, or to avoid an action or proceeding by any Governmental Entity or effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement prior to the End Date; (iv) defending through litigation on the merits any claim asserted in court by any person to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing from occurring prior to the End Date; and (v) taking, or causing to be taken, all other actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the President of the United States, CFIUS, the United States Department of Defense (including the Defense Security Services), the United States Department of Energy, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction may assert under Regulatory Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Regulatory Law that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby; provided, however, that nothing in this Section 5.6 shall require Parent to commit to or effect any action or agreement that is not conditioned upon the consummation of the transactions contemplated hereby. The Company shall not, without Parent’s prior written consent, agree to stay, toll or extend any applicable waiting period under any Regulatory Law, or discuss or commit to any of the actions or agreements in Section 5.6(b)(ii) or (iii) above, or discuss or commit to alter its businesses or commercial practices in any way, or otherwise take or commit to take any action that limits Parent’s freedom of action with respect to, or Parent’s ability to retain any of the businesses, product lines or assets of, the Company or otherwise receive the full benefits of this Agreement.
(c) In furtherance and not in limitation of the covenants contained in this Section 5.6, the Company and Parent shall (i) as promptly as reasonably practicable after the date of this Agreement, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, and (iii) executing subject to applicable legal limitations and delivering the instructions of any additional instruments necessary Governmental Entity, keep each other apprised of the status of matters relating to consummate the Transactionscompletion of the transactions contemplated thereby, in including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of each of clauses (i) through (iii)their respective Subsidiaries, other than from any third party and/or any Governmental Entity with respect to filingssuch transactions. Subject to the foregoing, notices, petitions, statements, registrations, submissions of information, applications Parent shall (a) control and other Consents lead all actions and strategy related to Regulatory Laws and litigation matters relating to Antitrust Regulatory Laws, which are dealt including all dealings with in Section 7.01(b)any Governmental Entity, (c) and (d).
(b) make all final determinations as to the appropriate course of action with respect to Regulatory Laws and Governmental Entities, and shall control and lead all communications related to Regulatory Laws and litigation matters relating to Regulatory Laws unless agreed otherwise as circumstances may dictate and as necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity or effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement prior to the End Date; provided that, notwithstanding anything to the contrary in this Agreement, the process for obtaining CFIUS approval shall be managed jointly by Parent and Company, Parent and Company shall jointly make all final determinations as to the appropriate course of action and all communications and filings (including, a withdrawal of submission) to and with CFIUS shall be jointly coordinated between Parent and Company. However, Parent shall make final determinations concerning agreements and undertakings to be entered into with CFIUS. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of the parties hereto Company and Parent agrees not to (i) make an appropriate filing of a Notification and Report Form pursuant participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the HSR Act with respect extent not prohibited by such Governmental Entity, gives the other party the opportunity to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) attend and any required notification under any other Antitrust Laws as participate. As promptly as reasonably practicable following the date of this Agreement, Parent and Company shall (a) arrange a meeting with CFIUS, (b) submit a draft joint voluntary notice to CFIUS and in any event (c) submit a final joint voluntary notice to CFIUS, each with respect regard to filings made this Agreement and other related information pursuant to Section 721 of the HSR Defense Production Act within ten (10) calendar daysof 1950, as amended. Each of Parent and the Company shall respond to any request for information from CFIUS in the timeframe set forth in the CFIUS regulations, 31 C.F.R. Part 800; provided, however, that either party, after consultation with the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date other party, may request in good faith an extension of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested time pursuant to 31 CFR § 800.403(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any extension that causes CFIUS to reject the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required voluntary notice filed by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate or modifies the Transactions as promptly as reasonably practicable and in any event prior to the Termination Datetime for CFIUS review or investigation.
(cd) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in Notwithstanding the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) nothing in this Section 5.6 shall be required limit a party’s right to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party5.6.
(e) Each For purposes of this Agreement, “Regulatory Law” means the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views ▇▇▇▇▇▇▇ Act of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to1890, the ▇▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)HSR Act, the Federal Trade Commission Act of 1914, the Defense Production Act of 1950, as amended, the International Traffic in Arms Regulations (the “FTCITAR”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any applicable requirements of the TransactionsNational Industrial Security Program, (iii) subject to applicable Laws relating to the exchange Export Administration Regulations, the embargoes and restrictions administered by the United States Office of informationForeign Assets Control and any Executive Orders of the President regarding embargoes and restrictions on trade with designated countries, entities and persons, and to the extent reasonably practicableall other federal, consult with the state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERCLaws, including any inquiries from staffantitrust, which applications competition or submissions shall be made as soon as practicabletrade regulation Laws, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant that are designed or intended to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) prohibit, restrict or regulate actions having the parties acknowledge that the execution purpose or effect of this Agreement and the consummation monopolization or restraint of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)trade or lessening competition through merger or acquisition, (ii) regulate the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days business or operations of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to Subsidiaries or (iii) protect the extent permitted under ISRA, will provide a self guarantee in lieu national security or the national economy of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchasernation.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement
Efforts. (a) Subject Except with respect to the matters set forth in Section 6.15, which shall be governed by the terms and conditions of Section 6.15, or otherwise as subject to the terms and conditions of this Agreement, each of the Purchaser and the Seller shall Parties agrees to use their its respective reasonable best efforts (unlessefforts, and shall cooperate fully with respect the other Parties, to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable under this Agreement and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as practicable, including using its reasonable best efforts to: (i) obtain all necessary actions or nonactions, licenses, permits, orders, notifications, clearances, waivers, authorizations, expirations or terminations of waiting periods, clearances, Consents and approvals from Governmental Entities and make all necessary registrations and filings and take all steps as may be necessary to obtain an approval or waiver from, or to avoid any Action, injunction or proceeding by, any Governmental Entity, including in connection with any Regulatory Law; (ii) defend any Actions challenging this Agreement or the consummation of the Transactions; and (iii) execute and deliver any notification or additional instruments necessary to consummate this Agreement and the Transactions.
(b) The Parties shall use reasonable best efforts to promptly obtain, and to cooperate with each other to promptly obtain, all necessary authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity. Each Party shall respond as promptly as practicable to any request by any Governmental Entity for information, documentation, other material or testimony, including by responding at the earliest reasonably practicable date to any request under or with respect to any inquiry by any Governmental Entity, and any such other applicable Laws for additional information, documents or other materials received by the Company or the SPAC or any of their respective Affiliates from any Governmental Entity regarding any matter with respect to the Transactions under any Regulatory Law. In furtherance and not in limitation of the foregoing, the Parties shall, and shall cause their Affiliates to, use reasonable best efforts to undertake promptly any and all action required to complete the Transactions as promptly as practicable (but in any event prior to the Termination Outside Date.
(c) Without limiting and any and all action necessary or advisable to avoid, prevent, eliminate or remove the foregoingactual or threatened commencement of any Action in any forum by or on behalf of any Governmental Entity or the issuance of any Order that would delay, enjoin, prevent, restrain or otherwise prohibit the Purchaser and consummation of the Seller shallTransactions, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required including to (ix) proffer or consent and/or agree to a Judgment any Order or consent order other agreement providing for the sale sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business or (y) promptly effect the disposition, licensing or holding separate of such party, including any assets or lines of business or (z) take any other remedy requested or proposed by any Governmental Entity, in each case, as may be necessary to permit the lawful consummation of the Transferred Entities (including the termination of any existing relationships Transactions on or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect prior to the Transactions (any of the actions described in the foregoing clause (i), (ii) Outside Date and except as would have or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to materially and adversely affect the BusinessCompany, taken as a wholefollowing Closing. For The Company and the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) SPAC shall only be required to sell, divest, dispose of or enter into undertake any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and action contemplated by the “reasonable best efforts” immediately preceding sentence in the event that such action is conditioned on the consummation of the Seller shall not include taking any of the Antitrust Remedial ActionsTransactions.
(dc) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Without limiting the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development generality of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or beforerest of this Section 6.3, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto Parties shall use its reasonable best efforts to (i) cooperate cooperate, as promptly as practicable, in all respects with each other in connection with any filing, filing or submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry and shall, subject to applicable Law and reasonable confidentiality considerations, as promptly as reasonably practicable (i) furnish to the other such necessary information and reasonable assistance as the other Party may reasonably request in connection with the foregoing; (ii) promptly notify and inform the other Party of any communication received from, or given by such Party or before any of their Affiliates to any Governmental Entity, regarding any of the Transactions; and (iii) provide counsel for the other Party with copies of all filings made by such Party, and all correspondence between such Party (and its advisors) with any Governmental Entity, and any other information supplied by such Party and such Party’s Affiliates to a Governmental Authority relating to Entity or received from such a Governmental Entity in connection with the Transactions; provided, including any proceeding initiated by a private personhowever, allow that materials may be provided on an outside counsel-only basis, and/or may be redacted (A) to remove references concerning competitively sensitive information and the valuation of the Company and the transactions contemplated thereby and (B) as necessary to comply with contractual arrangements. Each Party shall, subject to applicable Law, permit counsel for the other party Parties a reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party with respect to such filingParties in connection with, submission, or substantive any proposed written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of draft filing, correspondence or submission to any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given Entity in connection with the Transactions. Each Party agrees not to participate, nor permit any proceeding by a private Personof its Affiliates or their respective Representatives to participate, in each case regarding any of the Transactionsmeeting or discussion, (iii) subject to applicable Laws relating to the exchange of informationeither in person or by telephone, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactions, unless it consults with the other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used Parties in the rules and regulations under the HSR Actadvance and, and (iv) to the extent permitted not prohibited by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and Parties the reasonable opportunity to attend and participate inparticipate.
(d) Any information provided to any Party or its Representatives to another Party or its Representatives in accordance with this Section 6.3 or otherwise pursuant to this Agreement shall be held by the receiving Party and its Representatives in accordance with, substantive meetings and conferencesshall be subject to, the confidentiality obligations set forth in Section 6.4.
(e) During the Interim Period, the Parties shall not, and shall not permit any of their Affiliates to, knowingly take any action that could prevent, materially delay or materially impede the consummation of the Transaction.
(f) In furtherance of case, at any time after the obligations set forth in Section 7.01(a) and otherwise subject Closing, any further action is necessary or desirable to carry out the terms purposes of this Section 7.01Agreement, the Seller proper officers and the Purchaser directors of each Party shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaseraction.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Business Combination Agreement (dMY Squared Technology Group, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall each party will use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable laws and regulations to cause consummate the conditions to Merger and the Closing to be satisfied other transactions contemplated by this Agreement as soon as practicable after the date hereof, including, without limitation, (i) preparing and filing, in consultation with the other party and as promptly as practicable and to consummate and make effectiveadvisable after the date hereof, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filingsapplications, notices, petitions, statementsfilings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, submissions approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of information, applications and the other documents transactions contemplated by this Agreement (including with respect to any Permits, including Environmental Permits), the financing thereof) and (ii) obtaining taking all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments steps as may be necessary to consummate obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals; provided, however, that efforts in connection with the Transactions, in Financing and the case of each of clauses (i) through (iii)Required Indebtedness, other than notices and applications with respect to filingsState Regulators required in connection with the Financing and the Required Indebtedness, notices, petitions, statements, registrations, submissions of information, applications shall be governed by Section 7.11 and other Consents relating to Antitrust Laws, which are dealt with not this Section 7.3. In furtherance and not in Section 7.01(b), (c) and (d).
(b) Each limitation of the parties foregoing, each party hereto agrees (A) to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws transactions contemplated hereby as promptly as reasonably practicable following practicable, and in any event within 40 calendar days after the date execution of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such to take all other Antitrust Laws and to promptly take any and all steps actions necessary to avoid cause the expiration or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business termination of the Transferred Entities (including applicable waiting periods under the termination of any existing relationships or contractual rights of the Transferred Entities)HSR Act as soon as practicable, (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to file all applications required to be material to filed with the Business, taken as a whole. For FCC within 40 calendar days after the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision execution of this Agreement, neither (C) to file all notices and applications with State Regulators within 30 Business Days after the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision execution of this Agreement, (D) to file timely notices, submissions, draft agreements and amendments, or agreement termination proposals with the “reasonable best efforts” Team Telecom Agencies and DSS, (E) to file in a timely manner all notifications and filings required under any foreign antitrust laws, including, if applicable the EUMR, as promptly as practicable, (F) to file, as promptly as practicable, all appropriate filings, notices, applications, agreement termination proposals, or similar notifications or documents required or advisable in order to obtain such approvals of the Seller shall not include taking Team Telecom Agencies, DSS, and any of other Government Entity as required under applicable industrial security regulations and (G) make all filings required under applicable foreign investment regulations, including, if Parent determines appropriate after consultation with the Antitrust Remedial ActionsCompany, to CFIUS.
(db) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Each of Parent and the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority Company shall, in connection with the Transactions; provided that the Purchaser shall consult efforts referenced in good faith with the Seller regarding such strategySection 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act, the Communications Act, the Cable Landing License Act, or any other Regulatory Law (iias defined below), (i) coordinate the overall development of the positions to be taken cooperate in all respects and the regulatory actions to be requested consult with each other in connection with any communication, filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsinquiry, including any proceeding initiated by a private personparty, allow including by allowing the other party and/or its counsel to have a reasonable opportunity to review such filingin advance and comment on drafts of any communications, submission, or substantive written communication in advance, filings and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, submissions (and documents submitted therewith); (ii) keep promptly inform the other parties hereto informed in all material respects and on a reasonably timely basis party of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or the FCC, any other Governmental Authority Entity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, and (iii) subject permit the other party to applicable Laws relating to the exchange of informationreview any communication it gives to, and to the extent reasonably practicable, consult with the each other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in advance of any filing made withmeeting substantive telephone call, or written materials submitted to, any third Person or any Governmental Authority in connection conference with the TransactionsDOJ, the FTC, FCC, or such other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR ActGovernmental Entity or other person, and (iv) to the extent permitted by the DOJ, the FTC, the DOJFCC, FERC or such any other applicable Governmental Authority Entity or other Person, give the other parties hereto prompt notice of, and party and/or its counsel the reasonable opportunity to attend and participate inin such meetings, substantive meetings telephone calls and conferences, provided, however, that materials may be redacted (A) to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (B) as necessary to comply with contractual arrangements in effect prior to the date hereof, (C) as necessary to address reasonable privilege or confidentiality concerns, and (D) as necessary to address reasonable privilege concerns, and to remove personal and confidential information provided in connection with CFIUS and/or FOCI review. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.3(b) as “Antitrust Counsel Only Material.
(f) In furtherance ” Such materials and the information contained therein shall be given only to the outside counsel of the obligations set forth in Section 7.01(a) recipient and otherwise subject will not be disclosed by such outside counsel to the terms of this Section 7.01employees, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 officers or directors of the FPA recipient unless express permission is obtained in order to consummate advance from the Transactionssource of the materials (Parent or the Company, as the case may be) or its legal counsel. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date For purposes of this Agreement. The Purchaser , “Regulatory Law” means the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the Communications Act, the DSS FOCI mitigation requirements, the Cable Landing License Act, and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s other national, federal or state, domestic or foreign, if any, statutes, rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktownregulations, New Jerseyorders, decrees, administrative and judicial doctrines and other laws that are designed or intended to (i) prohibit, restrict or regulate actions having the parties acknowledge that the execution purpose or effect of this Agreement and the consummation monopolization or restraint of the Transactions will requiretrade, and the parties shall reasonably cooperate with respect toaffecting competition or market conditions through merger, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”)acquisition or other transaction or effectuating foreign investment, (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreementregulate telecommunications businesses, or (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)prohibit, (A) the “General Information Notice” shall identify restrict or regulate foreign investment. In furtherance and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation not in limitation of the Transactions), including causing covenants of the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.parties contained in
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser Company and the Seller Parent shall each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary under Applicable Law to consummate the Merger, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Company paying, any material cash consideration to any Third Party from whom consent or approval is required and the Company shall not modify or enter into any Company Material Contract or Company Real Property Lease or limit or dispose of any non-cash rights, assets or properties, and Parent shall not be obligated to permit or agree to the Company’s modification or entrance into any Company Material Contract or Company Real Property Lease or, on behalf of itself or any of its pre-Closing Affiliates, modify or enter into any agreement or limit or dispose of any non-cash rights, assets or properties, in each case pursuant to this Section 6.08(a) or any provision that cross-references the proviso to this Section 6.08(a).
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.08, each of Parent and the Company shall (i) promptly prepare and file any notification and report forms and related material required under the HSR Act and any other Antitrust Laws, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Merger and (ii) provide or cause the conditions to the Closing to be satisfied provided as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to by the DOJ or FTC under the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination DateAct.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates Subject to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior Applicable Law relating to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, exchange of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreementinformation, and the “reasonable best efforts” sole right of Parent to make the final determination on behalf of the Seller shall not include taking any of parties on all strategy and tactics for obtaining clearances under the HSR Act and other Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Laws, the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser Company and Parent and their respective counsel shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission provide each other with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party advance opportunity to review such filing, submission, or substantive written communication in advance, and comment upon and consider in good faith the views of such the other in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the Antitrust Laws) with respect to such filing, submission, or substantive written communicationa Governmental Entity in connection with the transactions contemplated hereby, (ii) keep the promptly inform each other parties hereto informed in all material respects and on a reasonably timely basis of any material communication (or other material correspondence or memoranda) received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the Transactionstransactions contemplated hereby and (iii) promptly furnish each other with copies of all material correspondence, other than “Transaction-Related Documents” filings and “Plans and Reports” as those terms are used in written communications between them or their Subsidiaries or Affiliates, on the rules and regulations under the HSR Actone hand, and (iv) any Governmental Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent permitted by practicable, provide the FTCother party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, the DOJ, FERC or such other applicable Governmental Authority investigation or other Personinquiry in connection with the transactions contemplated hereby. The parties may, give as they deem advisable and necessary, designate any competitively sensitive materials provided to the other parties hereto prompt notice ofunder this Section 6.08(c) as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials.
(d) Notwithstanding anything else contained herein, Parent shall not be required to, and the reasonable opportunity to attend and participate inCompany shall not, substantive meetings and conferences.
(f) In furtherance without the prior written consent of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01Parent, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such effortsoffer, including the execution ofpropose, agree, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, commit (i) the parties acknowledge that the execution to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of this Agreement and the consummation (A) any of the Transactions will requirerespective Affiliates of the Company or Parent or (B) any of the respective operations, divisions, businesses, product lines, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates (clauses (A) and (B) collectively, the parties shall reasonably cooperate with respect “Divestiture Assets”), prior to, compliance contemporaneously with or after the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended Closing (a “ISRADivestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Seller shall complete and file Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products lines, customers, assets, properties or rights (a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA FilingRestraint”) within five days of the date of this Agreement, or (iii) subject to Seller’s indemnification obligations with respect enter into any Order, consent decree or other agreement to any Non-Legacy Environmental Liabilities under Section 10.02(b)effectuate a Divestiture or Restraint, (A) except that, solely to the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions extent necessary to comply with ISRA (as a result of this Agreement and permit the consummation of the Transactions)Merger to occur before the End Date, including causing Parent shall use reasonable best efforts to satisfy the Company condition set forth in Section 7.01(c) by agreeing to execute an “ISRA Remediation Certification” form and implementing or committing to establish any required remediation funding source implement (1) sales, licenses or financial assurance divestitures to Third Parties (unless Purchaser notifies Seller in advance x) of Divestiture Assets that the Purchaserwere used to generate, the Company or its Affiliates, contributed to the extent permitted under ISRAgeneration of, will provide a self guarantee annual gross revenues that do not exceed $50,000,000 in lieu of the aggregate for all such required source or assurance) as necessary to consummate the Transactions sales, licenses and divestitures (and provide Purchaser with a reasonable opportunity to review and comment in advance determined based on such filings and submissionsgross fiscal 2015 revenues) and (y) have the right that do not require Parent to manage and control convey any Remedial Action with respect value to any Non-Legacy Environmental Liability Third Party other than the sales, licenses or divestitures of such Divestiture Assets as specified in clause (x) and reasonable and customary transition support or similar agreements of limited duration relating to such sales, licenses or divestitures (provided that any such transition support or similar agreement shall only be required to comply with ISRA, be agreed to by Parent to the extent it reflects arm’s-length and fair market value terms as determined by Parent in accordance with the terms of Section 10.05(cgood faith) and using (2) Restraints that would not have, and would not be reasonably expected to have, more than a licensed site remediation professional reasonably acceptable to Purchaserde minimis effect on Parent, the Company and their respective Subsidiaries.
(he) Notwithstanding anything Subject to the contrary in this Agreementproviso to Section 6.08(a), the Seller Company shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and its Affiliates to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the consents reasonably requested by Parent; provided that the Company shall have no obligation not take any action to pay money solicit or offer obtain such consents unless and until the Company or make any concession the Company’s counsel is directed to do so by Parent or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with Parent’s counsel and then only upon the performance of their respective obligations under this Section 7.01basis so requested.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions herein provided, each of this Agreement, the Purchaser and the Seller shall parties hereto agrees to use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied consummate and make effective as promptly as practicable the Mergers and to consummate and make effective, cooperate with each other in connection with the most expeditious manner practicable, the Transactionsforegoing, including (i) preparing using reasonable best efforts to take such actions as are necessary to obtain any necessary consents, approvals, orders, exemptions and filing promptly and fully authorizations by or from any public or private third party, including, without limitation, any that are required to be obtained under any federal, state or local Law or any Contract to which the Company, Hospitality or any Paired Entities Subsidiary is a party or by which any of their respective properties or assets are bound, to defend all documentation lawsuits or other legal proceedings challenging this Agreement or the consummation of the Mergers, to effect all necessary filingsregistrations and Antitrust Filings, noticesincluding, petitionsbut not limited to, statementsfilings under Antitrust Law, registrationsif any, and to make submissions of informationinformation requested by a Governmental Entity, applications and to use its reasonable best efforts to cause to be lifted or rescinded any Order or other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable order adversely affecting the ability of the parties to consummate the Transactions Mergers; provided that Parent, MergerCo 1 and MergerCo 2 shall not be required or obligated (iiiand nothing contained in this Section 7.3 or this Agreement shall require or obligate Parent, MergerCo 1 or MergerCo 2) executing and delivering to effect or agree to effect any additional instruments necessary sale, divestiture or disposition or any other action that limits its freedom of action with respect to, or its ability to consummate retain, any businesses, services or assets of the Transactions, in the case of each of clauses Paired Entities (i) through (iiior their respective Subsidiaries), other than with respect to filingsor, noticeseffective as of the Effective Time, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(bthe Company Surviving Corporation or the Hospitality Surviving Corporation (or their respective Subsidiaries), (c) and (d)or any interests therein.
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant Notwithstanding anything contained in this Agreement to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreementcontrary, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary nothing in this Section 7.01 7.3 or any other provision of this Agreement, neither the Seller nor Agreement shall require Parent or any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party Subsidiaries to take or agree to take any action with respect to Parent or its business affiliates (including the Blackstone Sponsor, Starwood Capital Group Holdings, L.P. and any investment funds or operations unless investment vehicles affiliated with, or managed or advised by, the effectiveness of Blackstone Sponsor, Starwood Capital Group Holdings, L.P. or any portfolio company (as such agreement term is commonly understood in the private equity industry) or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development investment of the positions to be taken and Blackstone Sponsor or Starwood Capital Group Holdings, L.P. or of any such investment fund or investment vehicle), other than the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation Paired Entities or other inquiry Paired Entities Subsidiaries or litigation by the Company Surviving Corporation or beforethe Hospitality Surviving Corporation (or their respective Subsidiaries). In no event shall the Company, Hospitality or any negotiations withPaired Entities Subsidiaries propose, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to negotiate, effect or agree with to any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, action contemplated by this Section 7.3 without the prior written consent of the other partyParent.
(ec) Each The Paired Entities shall notify Parent, promptly of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission communication from any person alleging that the consent of such person (or substantive written communication with a Governmental Authority another person) is or may be required in connection with the Transactions transactions contemplated by this Agreement (and in connection with any investigation the response thereto from the Paired Entities, the Paired Entities Subsidiaries or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationtheir Representatives), (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or from any other Governmental Authority and of any material communication received or given Entity in connection with any proceeding the transactions contemplated by a private Personthis Agreement (and the response thereto from the Paired Entities, in each case regarding any of the TransactionsPaired Entities Subsidiaries or their Representatives), (iii) subject to applicable Laws relating any material Legal Actions threatened or commenced against or otherwise affecting any of the Paired Entities or the Paired Entities Subsidiaries that are related to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, transactions contemplated by this Agreement or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTCany event, the DOJchange, FERC occurrence, circumstance or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after development between the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation Effective Time which causes or is reasonably likely to cause the conditions set forth in Sections 8.2(a) and 8.2(b) of this Agreement not to be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the Transactions will require, parties or the conditions to the obligations of the parties under this Agreement and shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.
(d) Parent shall notify the Company promptly of (i) any communication from any person alleging that the consent of such person (or another person) is or may be required in connection with the transactions contemplated by this Agreement (and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”response thereto from Parent or its Representatives), (ii) any communication from any Governmental Entity in connection with the Seller shall complete transactions contemplated by this Agreement (and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreementresponse thereto from Parent or its Representatives), or (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b)event, (A) change, occurrence, circumstance or development between the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result date of this Agreement and the consummation Effective Time which causes or is reasonably likely to cause the conditions set forth in Sections 8.3(a) and 8.3(b) of this Agreement not to be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the Transactions), including causing parties or the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, conditions to the extent permitted obligations of the parties under ISRA, will provide a self guarantee in lieu of this Agreement and shall not limit or otherwise affect the remedies available hereunder to the party receiving such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchasernotice.
(he) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make in connection with obtaining any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party consents in connection with the performance transactions contemplated by this Agreement from any person (i) without the prior written consent of Parent, none of the Paired Entities or any Paired Entities Subsidiary shall pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation and (ii) none of Parent or any of its affiliates shall be required to pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligations. In the event that any party fails to obtain any such consent, the parties shall use their commercially reasonable efforts to minimize any adverse effect upon a Paired Entity, Parent and their respective obligations under this affiliates and businesses resulting, or which would reasonably be expected to result, after the Effective Time, from the failure to obtain such consent.
(f) The delivery of any notice pursuant to Section 7.017.3(c) or Section 7.3(d) shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.
Appears in 1 contract
Efforts. (a) Subject to Each of the terms Company, Parent and conditions of this Agreement, the Purchaser and the Seller Merger Sub shall use their its respective reasonable best efforts to (unless, with respect to any action, another standard of performance is expressly provided for hereini) to promptly take, or cause to be taken, all actions, appropriate action and do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Law or otherwise to consummate and make effective the Merger, the Offer and the other transactions contemplated by this Agreement as promptly as practicable, including, without limitation, the undertaking of any divestitures, hold separate arrangements, or other actions necessary to obtain any required consents, licenses, permits, waivers, approvals, authorizations or orders from any Governmental Entity, (ii) take all such actions (if any) as may be required to cause the conditions expiration or termination of the notice periods under Competition Laws with respect to the Closing to be satisfied such transactions as promptly as practicable after the execution of this Agreement, (iii) obtain (A) from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event not later than three (3) Business Days prior to the Outside Date, and to consummate and make effectiveavoid any action or proceeding by any Governmental Entity or any other Person, in connection with the most expeditious manner practicableauthorization, execution and delivery of this Agreement and the Transactionsconsummation of the transactions contemplated hereby, including the Merger and the Offer, and (iB) preparing from any Third Party any consents or notices that are required to be obtained or made by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement in the case of this clause (B), only to the extent that Parent, Merger Sub and filing the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made, (iv) cause the satisfaction of all conditions to the Offer set forth in Annex A and cause the satisfaction of all conditions to the Merger set forth in Article 7, in each case, within its control, (v) defend and seek to prevent the initiation of all actions, lawsuits or other legal, regulatory or other Proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, nonappealable Order, (vi) seek to have lifted or rescinded any injunction or restraining order that may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, nonappealable Order, (vii) prepare and file as promptly and fully as practicable all documentation to effect all necessary filingsapplications, notices, petitions, statementsfilings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, submissions of informationapprovals, applications permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Third Party or any Governmental Entity to consummate the Merger, the Offer or the other documents transactions contemplated by this Agreement, (including viii) take all reasonable steps as may be necessary to obtain all such consents and approvals, and (ix) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement, the Merger and the Offer required under any Permitsother applicable Law. Notwithstanding anything to the contrary herein, the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration (including Environmental Permitsincreased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), (ii) obtaining all Consents or the provision of additional security (including with respect a guaranty) or otherwise incur or assume or agree to incur or assume any Permitsliability that is not conditioned upon the consummation of the Merger, to obtain any consent, waiver or approval of any Person (including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iiiEntity) executing and delivering under any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)Contract.
(b) Each of Parent and the parties hereto Company agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following that, between the date of this AgreementAgreement and the Effective Time, each of Parent the Company shall not (and the Company shall cause the Company Subsidiaries not to) (i) enter into or consummate any agreements or arrangements for an acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of any ownership interest in, or assets of, any Person, if such ownership interest or assets would reasonably be expected to result in any event delay in obtaining, or the failure to obtain, any regulatory approvals required in connection with the transactions contemplated hereby (including the Merger and the Offer), or (ii) take or agree to take any other action (including entering into agreements with respect to filings made pursuant any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would reasonably be expected to result in any delay in obtaining, or which would reasonably be expected to result in the HSR Act within ten failure to obtain, any approvals of any Governmental Entity required in connection with the transactions contemplated hereby (10) calendar days, provided, that including the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Merger and the date of this AgreementOffer), and (ii) supply as promptly as or which would otherwise reasonably practicable any additional information and documentary material that may be requested pursuant expected to prevent or delay the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid Merger or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination DateOffer.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding generality of anything to the contrary contained in this AgreementSection 6.4, the Purchaser (and its Affiliates) each party hereto shall not be required to (i) proffer or consent to a Judgment or consent order providing for give the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business parties prompt notice of the Transferred Entities (including the termination making or commencement of any existing relationships request, inquiry, investigation, action or contractual rights Proceeding by or before any Governmental Entity with respect to the Merger, the Offer or any of the Transferred Entities)other transactions contemplated by this Agreement, (ii) proffer or consent keep the other parties notified as to any other restriction, prohibition or limitation on the ownership or operation status of any of such assets request, inquiry, investigation, action or lines of businessesother Proceeding, or (iii) proffer promptly notify the other parties of any oral or consent written communication to enter or from any other Contract Governmental Entity regarding the Merger, the Offer or any of the other transactions contemplated by this Agreement and (iv) promptly provide to the other parties copies of any written communications received or provided by such assets party, or lines any of businessesits Subsidiaries, in order from or to remedy any concerns that any Governmental Authority may have Entity with respect to the Transactions (any of Merger, the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 Offer or any other provision of transactions contemplated by this Agreement; provided that Parent and the Company may, neither as each reasonably and in good f▇▇▇▇ ▇▇▇▇▇ advisable and necessary, designate any competitively sensitive material provided to the Seller nor any of its Affiliates (other than under this Section as “Antitrust Counsel Only Material.” Such materials and the Transferred Entities effective upon the Closing) information contained therein shall be required given only to sellthe outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, divestofficers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, dispose of as the case may be) or enter into any its legal counsel. Each party hereto will consult and cooperate with the other arrangements, or take any other Antitrust Remedial Action parties with respect toto and provide any necessary information and assistance as the other parties may reasonably request with respect to all notices, their businesses, product lines, assets submissions or operations pursuant to this Section 7.01 filings made by such party with any Governmental Entity or any other provision of information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, Agreement or any transactions contemplated by this Agreement and will permit the “reasonable best efforts” other parties to review and discuss in advance and consider in good faith the views of the Seller shall not include taking other parties in connection with any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or agree to take any action with respect to its business proposal made or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority submitted in connection with the Transactions; provided that Merger, the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development Offer or any of the positions to other transactions contemplated by this Agreement. In addition, except as may be taken and the regulatory actions to be requested in prohibited by any filing Governmental Entity or submission with a Governmental Authority in connection with the Transactions and by any applicable Law, in connection with any investigation such request, inquiry, investigation, action or other inquiry Proceeding other than the matters contemplated by Section 6.11, in connection with or litigation by related to the Merger, the Offer or beforethe other transactions contemplated hereby, each party hereto will consult with the other parties in advance and give the other parties or any negotiations with, a Governmental Authority their authorized representatives the opportunity to be present at each meeting or teleconference relating to the Transactions such request, inquiry, investigation, action or other Proceeding and of all to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other regulatory matters incidental theretoProceeding. Neither the Purchaser Parent nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental AuthorityCompany shall, without the prior written consent of the other party.
, extend any waiting period under the HSR Act (eby pull and refile, or otherwise) Each of or enter into any agreement with any Governmental Entity not to consummate the parties hereto shall use its reasonable best transactions contemplated by this Agreement. Notwithstanding anything to the contrary herein, Parent shall, after consulting with the Company and considering in good faith the Company’s views control the parties’ efforts to (i) gain regulatory clearance either before any Governmental Entity or in any action brought to enjoin the transactions contemplated hereby pursuant to any Competition Law including, if necessary, through litigation or the divestiture of assets or businesses, and shall consult and cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advanceone another, and consider in good faith the views of such other party with respect to such filingone another in doing so. Nothing contained in this Agreement shall give Parent or Merger Sub, submission, directly or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party toindirectly, the Antitrust Division right to control or direct the operations of the Department Company prior to the consummation of Justice (the “DOJ”)Merger. Prior to the Effective Time, the Federal Trade Commission (the “FTC”)Company shall exercise, FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date conditions of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or control over its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserbusiness operations.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject Without prejudice to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller other Transaction Documents, each party shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable desirable under Applicable Law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(d), use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (as determined in good faith by Walmart after consultation with the Company in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents, or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and the other documents Transaction Documents (including with respect as may be required upon one or more issuances of Warrant Shares, and whether such approvals arise from Antitrust Laws or otherwise, or one or more sales of Warrant Shares), which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and advisable, such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other party in promptly seeking to obtain all Consents (including with respect such exemptions, authorizations, consents, or approvals and to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions make all such filings and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, give such notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of the foregoing, as promptly as practicable after written notice from Walmart (but in the case of the HSR Act, no later than 10 Business Days after such written notice), and in any event no later than in accordance with established regulatory time frames, the parties hereto agrees to shall (i) make an appropriate filing of a file any Notification and Report Form pursuant to Forms required or advisable under the HSR Act with respect to the Transactions Federal Trade Commission and the United States Department of Justice and (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Actii) and any file, make or give, as applicable, all other filings, requests, or notices required notification or advisable under any other Antitrust Laws Laws, in each case with respect to the issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). In addition, following the receipt of the Initial Antitrust Clearance, to the extent required or advisable by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make, or give, as applicable, as promptly as reasonably practicable following and advisable (as determined in good faith by Walmart after consultation with the date Company in accordance with the first sentence of this AgreementSection 3.1(d)), (and in any event with respect to filings made pursuant to further filings, requests, or notices required under any Antitrust Laws, including the HSR Act within ten (10) calendar daysAct. Without limiting the generality of the foregoing, provided, that the obligation to make such filings each party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable to the appropriate Governmental Entities, and in any additional event no later than in accordance with established regulatory time frames, any information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws Laws. For purposes of this Agreement, the term “Initial Antitrust Clearance” as of any time means (x) prior to such time, the expiration or enter into a timing agreement with any Governmental Authority, without the prior written consent termination of the other party.
(e) Each waiting period under the HSR Act and the receipt of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filingexemptions, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsauthorizations, including any proceeding initiated by a private person, allow the other party to review such filing, submissionconsents, or substantive written communication in advanceapprovals, the making of all filings and the giving of all notices, and consider in good faith the views expiration of such other party with respect all waiting periods, subject to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonAntitrust Laws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating to the other parties hereto and their respective SubsidiariesInitial Filing Transaction, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control absence at such time of any Remedial Action with respect to Applicable Law or Order issued by any Non-Legacy Environmental Liability required to comply with ISRAcourt of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in accordance with each case that has the terms effect of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserpreventing the consummation of any issuances of Warrant Shares.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws or otherwise to consummate and make effective, in effective the most expeditious manner Transactions as promptly as practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or non-actions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, applications and other documents (including with respect clearance or waiver from, or to avoid an action or proceeding by, any PermitsGovernmental Authority, including Environmental Permitsin connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the delivery of required notices to, and the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions parties and (iii) executing and delivering the defending of any additional instruments necessary to consummate lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions; provided, that in no event shall the case Company or any of each the Company Subsidiaries be required to pay prior to the Closing any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Transactions under any contract or agreement.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall cooperate with each other in (i) make an appropriate filing of a Notification determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or any Company Subsidiary are operating any business) and Report Form pursuant (ii) to the extent not made prior to the date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the Company as promptly as practicable, and in any event as of the date hereof with respect to filings or submissions required under the HSR Act Act. Each party shall supply as promptly as practicable such information, documentation, other material or testimony that may be requested by any Governmental Authority, including by complying at the earliest reasonably practicable date with any request under or with respect to the Transactions HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, or any other Governmental Authority in connection with such applications or filings or the Transactions.
(which c) Without limiting any of its other obligations hereunder, Parent and Merger Sub shall request take all such further action as may be necessary to resolve such objections, if any, as the early termination United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, or competition authorities of any waiting period applicable to the Transactions under the HSR Act) and other nation or other jurisdiction (including multinational or supranational), or any required notification other Person, may assert under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event Regulatory Law with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement)Transactions, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Regulatory Law that may be required asserted by any foreign or U.S. federal, state or local Governmental AuthorityPerson with respect to the Merger, in each case with competent jurisdiction so as to enable the parties hereto to consummate Merger and the Transactions to occur as promptly soon as reasonably practicable possible (and in any event prior no later than sixty (60) days from the date of this Agreement), including by proposing, negotiating, committing to and effecting, by agreement, consent decree, hold separate order, trust or otherwise, (x) the Termination Date.
sale, divestiture or disposition of such assets, businesses, services, products or product lines of Parent or the Company (cor any of their respective Subsidiaries or Affiliates) Without limiting or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Parent or the foregoingCompany (or any of their respective Subsidiaries or Affiliates), (y) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or Affiliates and (z) any other actions that would limit the freedom of action of Parent, the Purchaser and the Seller shall, and shall cause Company or any of their respective Affiliates Subsidiaries or affiliates with respect to, or its ability to useretain, reasonable best efforts one or more of its or its Subsidiaries’ (including the Company’s or the Surviving Corporation’s) or Affiliates’ assets, businesses, services, products or product lines, in each case as may be required in order to cooperate in good faith with obtain all applicable required Governmental Authorities and undertake Consents as promptly as reasonably practicable commercially reasonable actions required (including expirations or terminations of waiting periods whether imposed by Law or agreement) and to complete lawfully avoid the Transactions prior entry of, or to effect the Termination Datedissolution of, providedany injunction, that notwithstanding anything to the contrary in this Agreementtemporary restraining order, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other dispositionorder in any suit or proceeding, which would otherwise have the effect of preventing the consummation of the Merger or the holding separate, of particular assets, categories of assets transactions contemplated by this Agreement or lines of business of such party, including assets or lines of business delaying any of the Transferred Entities foregoing beyond the End Date (including the termination each of any existing relationships or contractual rights of the Transferred Entities(x), (iiy) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or and (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (iz), (ii) or (iii) an a “Antitrust Remedial Divestiture Action”). Neither the Company nor any Company Subsidiaries shall, other than any Antitrust Remedial Actions that (A) solely apply to the Business from without Parent’s prior written consent, and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller Parent nor any of its Affiliates (other than Subsidiaries shall, without the Transferred Entities effective upon Company’s prior written consent, discuss or commit to any extension of any waiting period under any Regulatory Law or any agreement not to consummate the Closing) Merger or any of the Transactions. None of Parent, Merger Sub or the Company shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations action pursuant to this Section 7.01 or any other provision of this Agreement, and 6.10 unless it is expressly conditioned on the “reasonable best efforts” effectiveness of the Seller shall not include taking any of the Antitrust Remedial ActionsMerger.
(d) Nothing in this Agreement shall require any party Without limiting the foregoing and subject to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken applicable legal limitations and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and instructions of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent each of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to Company and Parent agrees (i) to cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating material actions pursuant to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communicationthis Section 6.10, (ii) keep to furnish to the other parties hereto informed such necessary information and assistance as the other may reasonably request in all material respects and on a reasonably timely basis connection with its preparation of any material communication notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other third party and/or any Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of respect to the Transactions, (iiiiv) subject to applicable Laws relating permit the other party to the exchange of information, review and to the extent reasonably practicable, consult with incorporate the other parties hereto party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to information relating obtaining the necessary approvals for the Transactions and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or transactions contemplated herein with any Governmental Authority in connection with the TransactionsTransactions unless, to the extent not prohibited by such Governmental Authority, it gives the other than party reasonable notice thereof and the opportunity to attend and observe. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.10 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.10.(d) as “Transaction-Related DocumentsAntitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(e) For purposes of this Agreement, “Plans and ReportsRegulatory Law” as those terms are used in means the rules and regulations under ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, and (iv) to the extent permitted by the FTCFederal Trade Commission Act, the DOJEC Merger Regulation, FERC or such and all other applicable Governmental Authority federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other PersonLaws, give including, without limitation, any applicable antitrust, competition or trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the other parties hereto prompt notice of, purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant Laws that relate to FERC’s rules, including all applicable deadlinesforeign investments.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Merger Agreement (Cdi Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall cooperate with the other parties hereto and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to (i) consummate and make effective, as promptly as reasonably practicable, and in any event prior to the most expeditious manner practicableOutside Date, the Transactions, including (i) preparing and filing promptly and fully all documentation necessary to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits)documents, (ii) obtaining obtain all Consents (including with respect to any Permitsapprovals, including Environmental Permits) consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing execute and delivering deliver any additional instruments necessary to consummate the Transactions, other than, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Gaming Laws, Gaming Authorities or Required Gaming Approvals, which are dealt with addressed in Section 7.01(b5.03(d) below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration in any form (including increased rent or other similar payment or commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (cincluding a guaranty) and or otherwise assume or incur or agree to assume or incur any liability, to obtain any consent or approval of any Person (d)other than any Governmental Authority) under any Contract.
(b) Each In furtherance and not in limitation of the parties hereto agrees to foregoing, the Company and Parent shall each (i) make an appropriate take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor its Affiliates shall be required (and the Company shall not agree to any of the following without the express written consent of Parent): (i) (A) to offer, agree or consent to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), (B) to offer, agree or consent to terminate or amend any (x) existing relationship, contractual right or obligation of Parent or any of its Affiliates (other than, after the Closing, the | Company or any of its Subsidiaries) or (y) venture or other similar arrangement of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), or (C) to offer, agree or consent to any impairment of, or restriction on, Parent or any of its Affiliates’ ability to own or operate any assets, licenses, operations, rights, product lines, businesses or interests (other than, after the Closing, any of the assets, licenses, operations, rights, product lines, businesses or interests of the Company or any of its Subsidiaries); or (ii) to commit to or effect any action that is not conditioned upon consummation of the Merger.
(d) Parent and Merger Sub shall, and shall (i) cause any Person employed by Parent or its Affiliates and (ii) use reasonable best efforts to cause any Person holding at least five (5)-percent of the outstanding capital stock of Parent, in each case that are reasonably necessary to obtain the Required Gaming Approvals to, as soon as reasonably practicable following the date of this Agreement, file, or cause to be filed, with the applicable Gaming Authorities all applications for licensure, submissions for suitability review and other appropriate, necessary and requested documentation in connection with all Required Gaming Approvals (it being understood that any such Gaming Authority’s failure to deem any such filing complete shall not, in and of itself, constitute a Notification and Report Form failure by Parent or Merger Sub to have satisfied its filing obligations pursuant to the HSR Act with respect this sentence). The parties hereto shall, and shall cause each of their respective Affiliates, as applicable, to use reasonable best efforts to comply with, pursue, and respond to any and all subsequent regulatory requests related to the Transactions (which shall request Required Gaming Approvals, and use reasonable best efforts to cause the early termination of receipt of, and to eliminate any waiting period applicable Restraint in respect of, the Required Gaming Approvals so as to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws obtain such Required Gaming Approvals as promptly as reasonably practicable following the date of this Agreement, Agreement (and in it being understood that any event with respect failure to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings obtain any Required Gaming Approval shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authoritynot, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoingof itself, the Purchaser and the Seller shallconstitute a failure by Parent, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, Merger Sub or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent Company to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of satisfied its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations obligations pursuant to this Section 7.01 or any other provision of this Agreement, sentence). Parent and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser Company shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 keep the other party reasonably informed of the FPA status of any substantive communications with, and any substantive inquiries or requests for additional information from, any Gaming Authorities regarding the Required Gaming Approvals received by Parent or the Company or any of their respective Subsidiaries and Affiliates; provided, that nothing in order this Section 5.03(d) shall require Parent or Merger Sub to consummate cause the Transactionspersonal applications, personal application-related materials, or communications relating to such personal applications (including formal and informal interviews by the Gaming Authority relating to such personal applications) of any individual representative of Parent or Merger Sub (or their respective Affiliates) to be shared with the Company. Parent shall lead, control and direct the process by which the parties hereto seek to obtain the Required Gaming Approvals, including by making final determinations related to the review or investigation of the Transactions by the Gaming Authorities (including substantive analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto or any other Persons reasonably necessary to obtain the Required Gaming Approvals) relating to any Required Gaming Approvals) and attending all meetings and discussions with the Gaming Authorities except to the extent that the Gaming Authorities may request to communicate exclusively with the Company; provided, that (i) Parent shall, in good faith, take into consideration the Company’s views, suggestions and comments regarding such strategy and process and (ii) Parent shall propose the structure and use its reasonable best efforts to take all other actions as Parent reasonably determines is necessary to obtain the Required Gaming Approvals. The Purchaser Company shall, and shall cause its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting Subsidiaries to, FPA Section 203-related applications supply to Parent as promptly as practicable any additional information and documentary material relating to the Company, its Subsidiaries or submissions with FERCany applicable individuals | that may be (or is reasonably expected to be) requested by any Gaming Authority, including any inquiries from staff, which applications or submissions shall be made and use reasonable best efforts to furnish to Parent such information and reasonable assistance as soon as practicable, but Parent may request in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, each of (i) the parties acknowledge that preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Gaming Authority and (ii) Parent’s efforts to obtain the execution of this Agreement Required Gaming Approvals.
(e) If during the period between the date hereof and the consummation of the Transactions will requireEffective Time, and the parties shall reasonably cooperate hereto become aware that a consent, approval, authorization or other action by, or filing with or notification to, any Gaming Authority on the part of, or with respect to, compliance the Company, Parent, Merger Sub, or any of their respective Subsidiaries and Affiliates is required in connection with the New Jersey Industrial Site Recovery Actexecution, N.J.S.A. 13:1K-6 et seq., delivery and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result performance of this Agreement and or the consummation of the Transactions, which was not otherwise listed on Section 5.03(d) of the Company Disclosure Letter (an “Additional Required Gaming Approval”), including causing such party hereto shall give prompt notice of such requirement to the other parties hereto, and, upon the written consent of all parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), each such Additional Required Gaming Approval shall be deemed a Required Gaming Approval solely for purposes of Section 5.03.
(f) If requested in writing by Parent (such request to set forth the specific Gaming Approval(s) to which the request relates) the Company shall, and shall cause its Subsidiaries to, take all such actions as are reasonably necessary (which, for the avoidance of doubt, shall not include any actions that would prevent the Company’s ability to execute an “ISRA Remediation Certification” form and operate in the ordinary course of business prior to establish Closing) to surrender any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, Gaming Approval(s) held by the Company or any of its AffiliatesSubsidiaries and set forth in such request (and cease business in each state or jurisdiction to which such Gaming Approval relates); provided, that such surrender (and cessation of business) shall only be required (i) to occur at such time the conditions to the extent permitted under ISRAClosing set forth in Article VI shall have been satisfied or waived or shall then be capable of being satisfied or waived if the Closing were to take place immediately following such surrender and cessation of business (which Parent shall confirm in writing in connection with its request), will provide and (ii) to be effective immediately prior to, and conditioned upon, the Closing. If Parent requests the surrender of any such Gaming Approval(s), and any such Gaming Approval is a self guarantee Required Gaming Approval set forth in lieu Section 5.03(d) of the Company Disclosure Letter, then for the purposes of Section 6.02(e) such Required Gaming Approval will, upon the effectiveness of such required source or assurance) as necessary to consummate the Transactions surrender (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissionscessation of business) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.015.03, be deemed to have been obtained.
Appears in 1 contract
Efforts. (a) Subject to Upon the terms and subject to the conditions of in this Agreement, the Purchaser and the Seller shall each Party will use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) take all action and to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, do all things necessary, proper necessary or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in effective the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws Transaction as promptly as reasonably practicable following December 31, 2023, including (a) satisfaction, unless waived by the date Party to whose benefit they would otherwise accrue, of this Agreementthe closing conditions in Article 6, (b) defending any Proceedings challenging the Transaction or the performance of the obligations of any Party in connection with the Transaction, (c) obtaining, delivering or effecting any waivers, modifications, permits, consents, approvals, authorizations, qualifications, notices, registrations and filings that are required in connection with the consummation of the Transaction and (d) executing and delivering any event with respect instruments and taking any other actions, including furnishing to filings made pursuant each other Party any assistance, books, records or other information the other Party reasonably requires in order to carry out the HSR Act within ten (10) calendar daysintent of the Transaction Documents, providedincluding the timely execution and delivery of all closing deliverables and the delivery to Buyer or one or more of its designees such deeds, that the obligation to make such filings bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due reasonably necessary to a United States federal government shutdown following vest at Closing in Buyer or one or more of their designees all right, title and interest in, to and under the date Membership Interests in the manner described herein, free and clear of this Agreementall Liens (other than Permitted Liens), and (ii) supply in form and substance reasonably satisfactory to Buyer. From and after the Closing, Sellers and Buyer agree to, from time to time, execute and deliver such other documents, certificates, agreements, and other writings as promptly any other Party reasonably requests, and to take such other actions, as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federalreasonably necessary, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other dispositionproper, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, advisable in order to remedy any concerns that any Governmental Authority may have with respect to (x) consummate or implement expeditiously the Transactions Transaction, (any y) facilitate the transition of the actions described Company and the Business and (z) allow for the continued operation of the Company in the Ordinary Course. Notwithstanding the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 5.1, but subject to the provisions of Section 5.10 hereof, none of Buyer or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall will be required obligated to sell, divest, dispose of or enter into make any other arrangementspayments, or take otherwise pay any other Antitrust Remedial Action with respect toconsideration, their businessesto any third party to obtain any applicable consent, product lines, assets waiver or operations pursuant approval related to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Landsea Homes Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, the Purchaser and the Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary set forth in this Agreement, the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, the actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, the things necessary, proper or advisable under applicable Laws and regulations or otherwise to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to (i) obtain the necessary actions or non-actions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods from Governmental Authorities and make the necessary registrations and filings and take the steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, including, without limitation, in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), and (ii) obtain all necessary consents, approvals or waivers from, and deliver notices to, third parties. The parties acknowledge and agree that their obligations to use their reasonable best efforts as set forth in this Section 7.10(a) shall include those obligations set forth on the Efforts Schedule.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, Parent, Seller and Buyer shall cooperate with each other in (i) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or any Company Subsidiaries are operating any business) and (ii) to the extent not made prior to the date hereof, timely making or causing to be made all respects such applications and filings as reasonably determined by Parent, Seller and Buyer as promptly as practicable (and in any event within ten (10) Business Days after the date hereof with respect to filings or submissions required under the HSR Act). Each party shall use reasonable best efforts to supply as promptly as practicable such information, documentation, other material or testimony that may be requested, and the provision of which is required, by any Governmental Authority, including by complying as soon as reasonably practicable with any request under or with respect to the HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Buyer or any of its Subsidiaries, on the one hand, or Parent or Seller or any of their respective Subsidiaries, on the other hand, from the FTC or the DOJ, or any other Governmental Authority in connection with such applications or filings or the Transactions.
(c) Notwithstanding anything to the contrary set forth herein, Buyer will not be required to propose, negotiate, commit to or effect, by agreement, consent decree, hold separate order, trust or otherwise, (i) the sale, divestiture or disposition of such assets, businesses, services, products or product lines of Buyer or the Company (or any of their respective Subsidiaries or Affiliates) or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Buyer or the Company (or any of their respective Subsidiaries or Affiliates), (ii) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Buyer or their respective Subsidiaries or Affiliates and (iii) any other actions that would limit the freedom of action of Buyer, the Company or any of their respective Subsidiaries or Affiliates with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Company’s) or Affiliates’ assets, businesses, services, products or product lines, or, in the event that any litigation is instituted which could have the effect of preventing the consummation of the Transactions, defend any such litigation. Neither Parent nor Seller nor any of their Subsidiaries shall, without Buyer’s prior written consent, discuss or commit to any extension of any waiting period under any Law or any agreement not to consummate the Transactions or otherwise take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain, any of the businesses, services, products or product lines of the Company (or any of its Subsidiaries or Affiliates) or otherwise receive the full benefits of this Agreement. None of Parent, Seller, Buyer or the Company shall be required to take any action pursuant to this Section 7.10 unless it is expressly conditioned on the effectiveness of the Transactions.
(d) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Authority, each of Parent and Seller, on the one hand, and Buyer, on the other hand, agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filingother material actions pursuant to this Section 7.10, submission or substantive written communication with a Governmental Authority (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, which is not otherwise legally privileged or considered commercially sensitive, (iii) to keep each other apprised of the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority status of matters relating to the completion of the Transactions, including any proceeding initiated by a private person, allow promptly furnishing the other party to review such filing, submission, with copies of notices or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication communications received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other third party and/or any Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of respect to the Transactions, (iiiiv) subject to applicable Laws relating permit the other party to the exchange of information, review and to the extent reasonably practicable, consult with incorporate the other parties hereto party’s reasonable comments in any material communication to be given by it to any Governmental Authority with respect to information relating obtaining the necessary approvals for the Transactions, and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or Transactions with any Governmental Authority in connection with the TransactionsTransactions unless, to the extent not prohibited by such Governmental Authority, it gives the other than party reasonable notice thereof and the opportunity to attend and observe. To the extent the parties shall share, in their sole discretion, information protected under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 7.10, the parties shall take reasonable efforts to share such information in a manner so as to preserve any applicable privilege. Buyer, Parent and Seller may, as each deems advisable and necessary, reasonably designate any competitively or commercially sensitive material provided to the other under this Section 7.10(d) as “Transaction-Related DocumentsAntitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Buyer, or Parent or Seller, as the case may be) or its legal counsel.
(e) For purposes of this Agreement, “Plans and ReportsRegulatory Law” as those terms are used in means the rules and regulations under ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, and (iv) to the extent permitted by the FTCFederal Trade Commission Act, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice ofEC Merger Regulation, and all other federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including, without limitation, any antitrust, competition or trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the reasonable opportunity to attend purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant Laws that relate to FERC’s rules, including all applicable deadlinesforeign investments.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Actua Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Seller, the Purchaser Company and the Seller Buyer shall use their respective all reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Transactions and the Transactionsother transactions contemplated by the Transaction Documents and the APA, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of informationwaiting periods, applications including any such matters that may be necessary under or in connection with the APA or consummation of the Albertson’s Asset Purchase, the Specified Approvals and the Buyer Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other documents legal proceedings, whether judicial or administrative, challenging the validity or enforceability of this Agreement or the consummation of the Transactions or the other transactions contemplated by the Transaction Documents and the APA; and (including iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and the Albertson’s Asset Purchase on the terms set forth in the Transaction Documents and the APA; provided that in no event shall Seller, Buyer, the Company or any of the Company’s Subsidiaries be required to pay prior to, at or after the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract other than as may be required in connection with the Refinancing; provided, however, that Seller and Buyer shall each be required to pay at the Effective Time 50% of any fees, penalties or other consideration that Seller, Buyer, the Company or any of the Company’s Subsidiaries is legally required to pay to any third party to obtain such party’s consent to or approval of the Transactions and the Albertson’s Asset Purchase, such payment not to exceed $10,000,000 by each of Seller and Buyer.
(b) Subject to the terms and conditions herein and without limiting the foregoing, Seller, the Company and Buyer shall (i) as promptly as practicable (and in any event within ten Business Days after the date hereof) after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Share Purchase and the other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any Permits, including Environmental Permits), applicable waiting periods under the HSR Act; (ii) use all reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and (B) promptly making all such filings and timely obtaining all Consents such consents, permits, authorizations or approvals; (including with respect iii) except as set forth in Section 5.5(b)(iii) of the Seller Disclosure Letter, supply to any PermitsGovernmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) use reasonable best efforts to take, including Environmental Permits) from any Governmental Authority or third party cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions and (iii) executing and delivering any additional instruments transactions contemplated hereby, including using reasonable best efforts to take all such further action as may be necessary to consummate resolve such objections, if any, as the TransactionsUnited States Federal Trade Commission, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Division of the parties hereto agrees to (i) make an appropriate filing United States Department of a Notification and Report Form pursuant to the HSR Act Justice, state antitrust enforcement authorities or any other person may assert under any Law with respect to the Transactions (which shall request transactions contemplated hereby, so as to enable the early termination of any waiting period applicable Closing to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws occur as promptly soon as reasonably practicable following the date of this Agreement, possible (and in any event with respect to filings made pursuant to no later than the HSR Act within ten (10) calendar days, End Date); provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, providedhowever, that notwithstanding anything to the contrary contained in this Agreement, the Purchaser nothing in this Agreement (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing including, for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in doubt, this Section 7.01 5.5), shall require, or be construed to require Buyer or any other provision of this Agreementits Affiliates to proffer to, neither or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, transfer, dispose of or otherwise encumber before or after the Seller nor Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or any of its Subsidiaries or of Buyer or any of its Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other than encumbrance by the Transferred Entities effective upon the Closing) shall be required to sellCompany or any of its Subsidiaries of any of their respective assets, divestlicenses, dispose of or enter into any other arrangementsoperations, or take any other Antitrust Remedial Action with respect to, their businessesrights, product lines, assets businesses, or operations pursuant interest therein or to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking agreement by any such person to take any of the Antitrust Remedial Actionsforegoing actions) or to agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Buyer’s or any of its Affiliates’ ability to own or operate, of any such assets, licenses, product lines, businesses or interests therein or Buyer’s or any of its Affiliates’ ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Company or any of its Subsidiaries or of Buyer or any of its Affiliates, in each case that would be reasonably likely to have a material adverse effect on the Company, and neither Seller, the Company nor any of the Company’s Subsidiaries shall take (or agree to take) any such action, to the extent applicable, except with Buyer’s prior written consent.
(dc) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless Seller, the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategyCompany, and (ii) coordinate the overall development of the positions to be taken Buyer shall cooperate and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 5.5, submission or substantive written communication with and subject to applicable legal limitations and the instructions of any Governmental Entity, Seller and the Company, on the one hand, and Buyer, on the other hand, shall keep each other apprised on a Governmental Authority in connection with current basis of the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority status of matters relating to the Transactionscompletion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Seller or the Company, on the one hand, or Buyer, on the other hand, as the case may be, or by any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Seller and the Company on the one hand, and Buyer, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted by Seller or substantive written communication, the Company (i) to remove proposals from third parties with respect thereto; (ii) keep as necessary to comply with contractual agreements; and (iii) as necessary to address reasonable privilege or confidentiality concerns. Seller and the Company, on the one hand, and Buyer, on the other parties hereto informed hand, agree not to participate in all material respects and on a reasonably timely basis of any material communication received substantive meeting or discussion, either in person or by such party fromtelephone, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or with any other Governmental Authority and of any material communication received or given Entity in connection with the proposed transactions unless they consult with the other party in advance and, to the extent not prohibited by such Governmental Entity, give the other party the opportunity to attend and participate.
(d) Subject to the proviso in Section 5.5(b), if any administrative or judicial action or proceeding, including any proceeding by a private Personparty, in each case regarding is instituted (or threatened to be instituted) challenging any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted transaction contemplated by the FTCTransaction Documents or the APA as violative of any Law, the DOJ, FERC or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser Company, on the one hand, and Buyer, on the other hand, shall cooperate in all respects with each other and shall use their respective reasonable best efforts to obtain approval from FERC contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of such transactions. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.5 shall limit a party’s right to terminate this Agreement pursuant to Section 203 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.5.
(e) Without limiting any other obligation under this Agreement, prior to the Closing, neither Seller nor Buyer and nor their respective Subsidiaries and Affiliates shall, and shall cause their respective Subsidiaries and Affiliates not to, take or agree to take any action that would reasonably be expected to prevent or delay the parties from obtaining any Specified Approval, Buyer Approval, or other approval, clearance or waiver from any Governmental Entity in connection with the Transactions, or to prevent or delay the consummation of the FPA Transactions.
(f) For purposes of this Agreement, “reasonable best efforts” shall not require (i) Buyer to (A) pay (or agree to pay) more for the Debt Financing (whether in order interest rate, fees or otherwise) than the terms set forth in the Debt Commitment Letters and any fee letter entered into by Buyer in connection therewith (including after giving effect to consummate any increase in interest rate, fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, so long as Buyer has complied with Section 5.8, otherwise agree to any alternative financing that is on terms or conditions materially less favorable to Buyer and the Transactions. The Purchaser Company, taken as a whole, than those in the Debt Commitment Letters and its Affiliates shall reasonably cooperate any fee letter entered into by Buyer in connection therewith (including after giving effect to any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such fee letter); (B) seek more capital than is committed in the Equity Commitment Letters; or (C) waive any condition or agree to any changes to the Commitment Letters; and consult (ii) Seller to (A) pay (or agree to pay) more for the Refinancing (whether in interest rate, fees or otherwise) than the terms set forth in the Refinancing Commitment Letters and any fee letter entered into by Seller in connection therewith (including after giving effect to any increase in interest rate, fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, so long as Seller has complied with the Section 5.9, otherwise agree to any alternative financing that is on terms or conditions materially less favorable to Seller and its Affiliates Non-Company Subsidiaries, taken as a whole, (and until after the Closing, the Company and its Subsidiaries, taken as a whole) to those in the Refinancing Commitment Letters and any fee letter entered into by Seller in connection therewith (including after giving effect to any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such efforts, including fee letter); (B) waive any condition or agree to any changes to the execution of, Refinancing Commitment Letters; or consenting to, FPA Section 203-related applications or submissions with FERC, including (C) consummate the Refinancing if after doing so Seller would be in default under the Definitive Refinancing Agreements (without prejudice to any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date rights of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions Buyer pursuant to FERC’s rules, including all applicable deadlinesSection 7.1(h)).
(g) In connection with The Parties shall negotiate the Company Sites located in Pedricktownforms, New Jersey, (i) the parties acknowledge that the execution of this Agreement terms and the consummation conditions of the Transactions will require, and agreements described in the parties shall reasonably cooperate with respect to, compliance with term sheet set forth in the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and Section 5.5(g) of the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended Seller Disclosure Letter (the “ISRALancaster/MRDC Agreements”), on the basis of such term sheet, in good faith, with each such Lancaster Agreement to incorporate usual and customary provisions for similar agreements in similar circumstances. If a definitive Lancaster/MRDC Agreement cannot be finalized by Closing, the Closing shall nevertheless occur (ii) subject to the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days satisfaction or waiver of the date other conditions contained herein). During the period following the Closing Date until such Lancaster/MRDC Agreement is executed, the parties shall, and shall cause their respective Affiliates to, operate the business with respect to the subject matter of such Lancaster/MRDC Agreement on the terms and conditions set forth in the term sheet attached to this Agreement, (iii) subject to Seller’s indemnification . The term sheet shall govern the parties’ rights and obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) such subject matter until the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this respective Lancaster/MRDC Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaserhas been executed.
(h) Notwithstanding anything The Parties shall work together in good faith to make commercially reasonable transition/supply arrangements in respect of the contrary matters set forth in this Agreement, Section 5.5(h) of the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) Disclosure Schedule, in addition to any Governmental Authority or other third party related transition services in connection with respect thereof to be provided under the performance of their respective obligations under this Section 7.01Seller-Company TSA and the Seller-ABS TSA.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this Agreement, the Purchaser Section 3.1) and the Seller other Transaction Documents, each party shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable desirable under Applicable Law to cause carry out the conditions provisions hereof and thereof and give effect to the Closing transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to be satisfied the provisions of this Section 3.1, including Section 3.1(d), use its reasonable best efforts to obtain as promptly as practicable and advisable (as determined in good faith by Amazon in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents or approvals from, and to consummate make all filings with and make effectiveto give all notices to, in the most expeditious manner practicable, the Transactionsall third parties, including (i) preparing any Governmental Entities, required in connection with the transactions contemplated by this Agreement and filing the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as practicable and fully all documentation to effect all necessary filingsadvisable, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect such information to any PermitsGovernmental Entity as such Governmental Entity may request in connection therewith, including Environmental Permits), and (ii) obtaining cooperate fully with the other party in promptly seeking to obtain all Consents such exemptions, authorizations, consents or approvals and to make all such filings and give such notices; provided, that nothing in this Section 3.1(a) shall require either party to expend any money, bring any claim, action or proceeding or offer or grant any accommodation (including with respect financial or otherwise) to any Permits, including Environmental Permits) from any Governmental Authority or third party necessaryto obtain any such exemptions, proper authorizations, consents or advisable approvals or to consummate the Transactions and make any such filings or notices (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions the payment of information, applications customary fees and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (dexpenses).
(b) Each Without limiting the generality of the parties hereto agrees to foregoing, (i) make an appropriate filing of a as promptly as practicable after written notice from Amazon, the parties shall file the Notification and Report Form pursuant to Forms required under the HSR Act with respect to the Transactions Federal Trade Commission and the United States Department of Justice (the date on which shall request the early termination of any waiting period applicable to the Transactions all such Notification and Report Forms required under the HSR ActAct have been initially filed, the “HSR Filing Date”) and any (ii) as promptly as practicable after written notice from Amazon, file, make or give, as applicable, all other filings, requests or notices required notification under any other Antitrust Laws Laws, in each case with respect to the issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). In addition, following the receipt of the Initial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as reasonably practicable following and advisable (as determined in good faith by Amazon in accordance with the date first sentence of this AgreementSection 3.1(d)), (and in any event with respect to filings made pursuant to further required filings, requests or notices required under any Antitrust Laws, including the HSR Act within ten (10) calendar dayscollectively, providedthe “Other Antitrust Filings”). Without limiting the generality of the foregoing, that the obligation to make such filings each party shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement), and (ii) supply as promptly as reasonably practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act and such or any other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in Laws. For purposes of this Agreement, the Purchaser term “Initial Antitrust Clearance” as of any time means (and its Affiliatesx) shall not be required prior to (i) proffer such time, the expiration or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business termination of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act and the receipt of all exemptions, authorizations, consents or approvals, the making of all filings and the giving of all notices, and the expiration of all waiting periods, pursuant to any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party.
(e) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private PersonLaws, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto required with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Initial Filing Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (ivy) to the extent permitted by the FTCabsence at such time of any Applicable Law or temporary restraining order, the DOJ, FERC preliminary or such other applicable Governmental Authority permanent injunction or other Personjudgment, give order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation, decision or decree issued by any court of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in each case that has the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, substantive meetings and conferences.
(f) In furtherance effect of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and preventing the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seqInitial Filing Transaction., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Investment Agreement (Atlas Air Worldwide Holdings Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Purchaser parties hereto shall (and the Seller shall use cause their respective Affiliates, if any, to) use reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, actions and to do, or cause to be done, and assist and cooperate with the other parties to this Agreement in doing, all things necessary, proper necessary or advisable to consummate and make effective the Transaction and the other transactions contemplated by this Agreement and to cause the conditions to the Closing set forth in Article VI to be satisfied satisfied, as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including (i) preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including with respect to any Permits, including Environmental Permits), (ii) obtaining all Consents (including with respect to any Permits, including Environmental Permits) from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Transactions, in the case of each of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d).
(b) Each Without limiting the generality of anything contained in Section 4.01(a) or elsewhere in this Agreement, each of the parties hereto undertakes and agrees to use its reasonable best efforts to: (i) make an appropriate filing of a make, as soon as practicable, all necessary filings and notifications and other submissions with respect to this Agreement, the Transaction and the other transactions contemplated hereby under the Antitrust Laws and, in any event, file the Notification and Report Form pursuant to under the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within no more than ten (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following Business Days after the date of this Agreement), and hereof; (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act and such or any other Antitrust Law and prosecute such filings and other presentations with diligence; and (iii) use its reasonable best efforts to take, or cause to be taken (including by their respective Subsidiaries), all other actions consistent with Section 4.01 necessary to cause the expiration or termination of the applicable waiting period under the HSR Act and other Regulatory Approvals as promptly as possible and in any event prior to the Outside Date. The parties hereto will each advise the other party promptly of any communication received by such party or any of its Affiliates from the United States Federal Trade Commission, the United States Department of Justice, applicable foreign antitrust and other regulatory Governmental Entities, any state attorney general or any other Governmental Entity regarding the Transaction or any of the other transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received or provided by the Purchaser or the Seller, as the case may be, or any of their respective Affiliates, from or to any third party and/or any Governmental Entity. Each of the parties hereto agrees not to independently participate in any meeting with any Governmental Entity in connection with the Transaction and the other transactions contemplated hereby without giving the other parties reasonable advance notice prior to the meeting and the opportunity to attend and/or participate, in each case, unless prohibited by the Governmental Entity. The Seller and the Purchaser will consult and cooperate with one another in connection with any information or proposals submitted in connection with proceedings under or relating to any applicable Antitrust Law or the Regulatory Approvals in connection with the Transaction and the other transactions contemplated hereby and provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications with a Governmental Entity relating to the Antitrust Laws or the Regulatory Approvals. The parties hereto shall take reasonable best efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 4.01 in a manner so as to preserve the applicable privilege. Anything to the contrary in this Section 4.01(b) notwithstanding, materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation of the IM Business.
(c) Each of Parent, the Purchaser and the Seller shall use reasonable best efforts to promptly take take, or cause to be taken, any and all steps necessary actions as may be required to cause the expiration of the notice or waiting periods under any of the Antitrust Laws with respect to the Transaction and the other transactions contemplated by this Agreement, to resolve such objections, if any, that a Governmental Entity may assert under any Antitrust Law with respect to the Transaction and the other transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental AuthorityEntity, in each case with competent jurisdiction so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as reasonably practicable possible after the execution of this Agreement, including without limitation, (x) proposing, negotiating, committing to and in effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any event prior to the Termination Date.
(c) Without limiting the foregoingbusinesses, assets, equity interests, product lines or properties of Parent, the Purchaser or the IM Business Entities (or any of their respective Subsidiaries) or the IM Business, (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of Parent, the Purchaser or the IM Business Entities (or any of their respective Subsidiaries) or the IM Business, and (z) otherwise taking or committing to take any action that would limit Parent’s, the Purchaser’s or the IM Business Entities’ freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Parent, the Purchaser or the IM Business Entities (including any of their respective Subsidiaries) in each case as may be required in order to obtain all approvals, consents, clearances, expirations or terminations of waiting periods, authorizations and other confirmations required directly or indirectly under any Antitrust Law or to avoid the commencement of any action to prohibit the Transaction or any of the other transactions contemplated by this Agreement under any Antitrust Law, or, in the alternative, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any action or proceeding seeking to prohibit the Transaction or any of the other transactions contemplated by this Agreement; provided, however, that neither the Seller shallnor any of its Subsidiaries shall become subject to, and shall cause their respective Affiliates or consent or agree to useor otherwise take any action with respect to, reasonable best efforts any requirement, condition, understanding, agreement or order of a Governmental Entity to cooperate sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the IM Business Entities or the IM Business, unless such requirement, condition, understanding, agreement or order is binding on the Seller only in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to event that the Termination Date, provided, that notwithstanding Closing occurs. Notwithstanding anything to the contrary herein, nothing in this AgreementAgreement shall require Purchaser or any of its Subsidiaries to, nor shall Seller or any of its Subsidiaries without the prior written consent of Purchaser (and its Affiliates) shall not be required to agree or offer to: (i) proffer effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the IM Business or of Purchaser or its Subsidiaries, or to enter into any settlement or consent to a Judgment or consent order providing for the sale or other dispositiondecree, or agree to any material limitation on the holding separate, of particular assets, categories of assets operation or lines of business of such party, including assets or lines of business conduct of the Transferred Entities (including the termination of any existing relationships or contractual rights businesses of the Transferred EntitiesIM Business or of Purchaser or its Subsidiaries, (ii) otherwise waive, abandon or alter any rights or obligations of the IM Business or of Purchaser or its Subsidiaries, or (iii) take any other action contemplated by the first sentence of this Section 4.01(c), in each of cases (i), (ii) proffer or consent to any other restrictionand (iii), prohibition or limitation that would have an adverse effect on the ownership Purchaser and its Subsidiaries or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesseson the IM Business, in order either case of a magnitude that, if affecting the IM Business only, would or would reasonably be expected to remedy any concerns that any Governmental Authority may have have, individually or aggregated with respect to the Transactions (any of the other actions described in the foregoing clause clauses (i), (ii) or (iii) above, an “Antitrust Remedial Action”)IM Business Material Adverse Effect (provided that, other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For for the avoidance of doubt and notwithstanding anything to doubt, none of the contrary exclusions set forth in this Section 7.01 or any other provision the definition of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) IM Business Material Adverse Effect shall be required deemed to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actionsapply).
(d) Nothing in this Agreement Each of Parent, Purchaser and Seller shall require any party to take or agree to not, and shall cause each of its Affiliates not to, take any action with respect which is intended to its business or operations unless which would reasonably be expected to adversely affect the effectiveness ability of such agreement or action is conditioned upon the Closing. The Purchaser shall (i) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken parties hereto from obtaining (or cause delay in obtaining) any Regulatory Approvals, from performing its covenants and agreements under this Agreement, or from consummating the Transaction and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation transactions contemplated by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other partythis Agreement.
(e) Each Prior to the Closing, each party shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain, and to cooperate in obtaining, all consents from third parties other than Regulatory Approvals necessary or appropriate to permit the consummation of the parties hereto Transaction and the other transactions contemplated hereby including, without limitation, the consents and approvals referred to in Section 2.03 and 3.03 hereof, and in addition, prior to the Closing, Seller shall use its reasonable best efforts to obtain the consents set forth on Schedule
4.01 (ie)(i) cooperate in all respects with each other in connection with any filing, submission or substantive written communication with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, allow the other party to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such other party with respect to such filing, submission, or substantive written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice Seller Disclosure Schedules (the “DOJRequired Third Party Consents”)) in form and substance reasonably satisfactory to Purchaser and remaining in full force and effect at Closing; provided, the Federal Trade Commission (the “FTC”), FERC or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personhowever, in each case regarding case, that the parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required (other than de minimis fees or nominal filing or application fees); provided, further, that the Seller shall not enter into any amendment or additional agreement with the counterparty from whom a Required Third Party Consent is sought that is adverse to any IM Business Entity, the Purchaser or Parent without the prior written consent of Purchaser. Seller shall keep Purchaser reasonably apprised of the Transactionsstatus of obtaining any Required Third Party Consent. If Seller shall not have obtained a Required Third Party Consent on or before the Closing Date, it shall take the actions (iiiif any) subject set forth in Schedule 4.01(e)(ii) of the Seller Disclosure Schedules for the relevant Required Third Party Consent. The actions set forth in Schedule 4.01(e)(ii) of the Seller Disclosure Schedules and indemnification identified in Item 1 of Schedule 8.02(a) of the Seller Disclosure Schedules shall be the sole remedies, if any, of Parent and the Purchaser for the failure to applicable Laws relating to obtain any Required Third Party Consent, regardless of the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, FERC or reason for such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice offailure, and the reasonable opportunity to attend Seller shall have no other liability or indemnification for such failure. Nothing in this Section 4.01(e) limits the rights and participate in, substantive meetings and conferences.
(f) In furtherance obligations of the obligations set forth in Section 7.01(a) and otherwise subject to parties under the terms other provisions of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines4.01.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective obligations under this Section 7.01.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Convergys Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Purchaser and the Seller parties hereto shall use their respective its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly taketake promptly, or cause to be taken, all actions, and doto do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable and under applicable Laws to consummate and make effective, in effective the most expeditious manner practicable, Merger and the other Transactions, including (i) preparing and filing promptly and fully all documentation to effect the obtaining of all necessary filingsactions or nonactions, noticeswaivers, petitionsconsents, statementsclearances, registrationsapprovals, submissions and expirations or terminations of information, applications and other documents (including with respect to any Permitswaiting periods, including Environmental Permits)the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all Consents (including with respect to any Permitsnecessary consents, including Environmental Permits) approvals or waivers from any Governmental Authority or third party necessaryparties, proper or advisable to consummate the Transactions and (iii) executing the execution and delivering delivery of any additional instruments necessary to consummate the Transactions; provided, however, that in no event shall Parent, the case Company, or any of each their respective Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of clauses (i) through (iii), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to Antitrust Laws, which are dealt with in Section 7.01(b), (c) and (d)the Transactions under any Contract or agreement.
(b) Each of Subject to the parties hereto agrees to terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) make an appropriate filing of a promptly, but in no event later than five (5) Business Days after the date hereof, file any and all required Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions Forms under the HSR Act) , and file as promptly as practicable any other filings and/or notifications that are required notification to be filed under any other applicable Antitrust Laws as promptly as reasonably practicable following set forth in Section 6.6(b) of the date Company Disclosure Letter to consummate the Transactions, and use their reasonable best efforts to cause the expiration or termination of this Agreement, (and in any event with respect to filings made pursuant to applicable waiting periods under the HSR Act within ten or obtain any other regulatory approvals under the Antitrust Laws as set forth in Section 6.6(b) of the Company Disclosure Letter (10) calendar days, provided, that the obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement“Required Regulatory Approvals”), and (ii) use their reasonable best efforts to cooperate with each other in making all filings and timely obtaining Required Regulatory Approvals, (iii) supply to any Governmental Entity as promptly as reasonably practicable any additional information and documentary material or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the HSR Act Transactions, including taking all such further action as may be necessary to resolve such objections, if any, as any Governmental Entity may assert under any Law (other than with respect to any Action by any stockholder related to this Agreement or the Transactions) with respect to the Transactions, and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws Law that may be required asserted by any foreign or U.S. federal, state or local Governmental Authority, in each case Entity with competent jurisdiction respect to the Transactions so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as reasonably practicable possible (and in any event prior no later than the End Date), including (x) proposing, negotiating, committing to the Termination Date.
(c) Without limiting the foregoingand effecting, by consent decree, hold separate order or otherwise, the Purchaser sale, divestiture or disposition of any assets, product lines or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Seller shallClosing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding which would otherwise have the effect of preventing or delaying the Closing; provided, that neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or Order of a Governmental Entity to sell, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets, product lines or business of the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or Order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement (including, for the avoidance of doubt, Section 6.1(b) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their respective Subsidiaries and Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that notwithstanding anything to the contrary in this Agreement, the Purchaser (and its Affiliatesnot to) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the “reasonable best efforts” of the Seller shall not include taking any of the Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to take any action with respect that would be reasonably likely to its business prevent or operations unless the effectiveness of such agreement or action is conditioned upon materially delay the Closing. The Purchaser Company and Parent shall not (iand shall cause their Subsidiaries and Affiliates not to) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions; provided that the Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under any Antitrust Law or enter into any agreement with any Governmental Entity to delay, or otherwise not to consummate as soon as practicable, the transactions contemplated by this Agreement, or withdraw or refile any filing under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental AuthorityLaw, without the prior written consent of the other party.
(ec) Each of the parties hereto The Company, Parent and Merger Sub shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any filingother material actions pursuant to this Section 6.6, submission or substantive written communication with a and, subject to applicable legal limitations and the instructions of any Governmental Authority in connection with Entity, the Transactions Company, on the one hand, and in connection with any investigation or Parent and Merger Sub, on the other inquiry by or before a Governmental Authority hand, shall keep each other apprised of the status of matters relating to the completion of the Transactions, including promptly furnishing the other with copies of notices or other material communications received by the Company or Parent, as the case may be, or any proceeding initiated by a private personof their respective Subsidiaries or Affiliates, allow from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review such filing, submission, or substantive written communication in advance, and consider in good faith the views of such the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, or substantive written communicationany documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (iix) keep to remove references concerning the other parties hereto informed in all material respects valuation of the businesses of the Company and on a reasonably timely basis of any material communication received by such party fromits Subsidiaries, or given by proposals from third parties with respect thereto, and (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations, provided that Parent shall contemporaneously provide unredacted copies of such party to, the Antitrust Division materials to Company’s counsel. Each of the Department of Justice (the “DOJ”)Company, the Federal Trade Commission (the “FTC”)Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, FERC either in person or any other Governmental Authority and of any material communication received or given in connection by telephone, with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority Entity in connection with the TransactionsTransactions unless it consults with the other party in advance and, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted not prohibited or required otherwise by the FTCsuch Governmental Entity, the DOJ, FERC or such other applicable Governmental Authority or other Person, give gives the other parties hereto prompt notice of, and party the reasonable opportunity to attend and participate in, substantive meetings and conferencesparticipate.
(f) In furtherance of the obligations set forth in Section 7.01(a) and otherwise subject to the terms of this Section 7.01, the Seller and the Purchaser shall use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the Transactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, in accordance with the terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(hd) Notwithstanding anything to the contrary in this AgreementAgreement (i) in no case shall the Company, Parent or Merger Sub be obligated to (and the Seller Company shall not, without the written consent of Parent, and in no event shall Parent or Merger Sub be deemed to have breached any representation, warranty, covenant or agreement for refusing to) become subject to, consent to or agree to, or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change its respective assets or business (including those of its respective Affiliates) in any manner that, either individually or in the aggregate, (A) materially adversely affects the financial condition, business, or the operations of (x) the Company and its Subsidiaries, on a consolidated basis, or (y) Parent and its Affiliates shall have no obligation or (B) prohibits or materially limits the ownership, control or operation by (x) the Company and its Subsidiaries or (y) Parent and its Affiliates, of any material portion of its or their respective businesses or assets, or compels the Company or Parent or any of its Affiliates to pay money dispose of or hold separate any of its material businesses or assets or any portion thereof; provided, that if requested by Parent, the Company will become subject to, consent to, or offer or make agree to, or otherwise take any concession action with respect to, any such requirement, condition, limitation, understanding, agreement, or grant any accommodation (financial Order so long as such requirement, condition, limitation, understanding, agreement, or otherwise) to any Governmental Authority or other third party Order is only binding on the Company in connection with the performance of their respective obligations under this Section 7.01event the Closing occurs.
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