Reasonable Best Efforts to Consummate. (a) Except for approvals or requirements under the applicable Antitrust Laws, which are specified in Sections 7.03(b)-(e) below, each of the Parties shall cooperate, and use its reasonable best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate the Mergers and the other transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable after the date hereof including using reasonable best efforts to (i) cause the conditions precedent set forth in Article VIII to be satisfied, (ii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations (including the expiration or termination of any waiting periods) from Governmental Authorities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and take all steps as may be necessary to avoid, or have terminated if begun, any Proceedings by any Governmental Authority, (iii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations from third parties, (iv) defend any investigations or Proceedings, whether judicial or administrative, challenging this Agreement, any other Transaction Agreement, or the consummation of the transactions contemplated hereby, including seeking to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or Order entered into by any Governmental Authority which could prevent or delay the Mergers or the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements and (v) execute and deliver additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the other Transaction Agreements. (b) Notwithstanding the foregoing, subject to the requirements of applicable Antitrust Laws, GrafTech and the Partnership agree to cooperate and to use their reasonable best efforts to obtain, as promptly as practicable following the date hereof, any Requisite Regulatory Approvals required for the Closing under the HSR Act, EC Merger Regulation and any other applicable Antitrust Laws and to respond to any government requests for information thereunder, to contest and resist in good faith any action thereunder, and use reasonable best efforts to have lifted or overturned any governmental Order that restricts, prevents, or prohibits the consummation of the transaction contemplated by this Agreement (an “Antitrust Order”). As of the date hereof, to each of the Partnership’s and GrafTech’s respective knowledge, the Requisite Regulatory Approvals required for the Closing under applicable Antitrust Laws are under the HSR Act and competition laws of Ukraine, Russia, Greece and Turkey. Each of GrafTech and the Partnership will use their reasonable best efforts to make any filings required under the HSR Act within 10 Business Days from the date hereof and all other notifications, filings, or registrations required under applicable antitrust and competition Laws as soon as reasonably practicable from the date hereof. (c) Notwithstanding the foregoing, in the event any such litigation, negotiation or other action is not reasonably capable of being resolved by the End Date, GrafTech shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of GrafTech, the Partnership or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of GrafTech, the Partnership or their respective Subsidiaries, 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 have the effect of preventing or delaying the Effective Time beyond the End Date, other than such actions that could reasonably be expected to have a Material Adverse Effect on GrafTech. (d) Each of GrafTech and the Partnership shall use its reasonable best efforts to “substantially comply” as promptly as practicable with any request for additional information or documentary material issued by a Governmental Authority under 15 U.S.C. Sec 18(e) and in conjunction with the transactions contemplated by this Agreement (a “Second Request”). Each of GrafTech and the Partnership will certify to substantial compliance with respect thereto as promptly as practicable, but in no event more than two (2) months after the date of the Second Request plus any additional time as agreed by the Parties. Each of GrafTech and the Partnership agrees to take all reasonable steps to assert, defend, and support certification of substantial compliance with any Second Request, and notwithstanding anything to the contrary in this Agreement, GrafTech and the Partnership each shall pay and be responsible for 50% of the fees and expenses of ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel to the Partnership in connection with a Second Request (which shall be included in the Combined Transaction Expenses to the extent paid by the Partnership). Neither Party shall take any action to extend or toll the waiting period requirements of the HSR Act or provide the Department of Justice any additional time to consider, investigate, or review the transactions contemplated by this Agreement, in each case to a date beyond the End Date, without the consent of the other Party (not to be unreasonably withheld). Each of GrafTech and the Partnership agrees to give such advance notices as may be required (including, if necessary, notice of an anticipated closing date), and to otherwise reasonably cooperate to give effect to the rights of the other set forth in this Section 7.03. (e) Each of GrafTech and the Partnership shall cooperate regarding, and keep the other reasonably apprised of the status of, matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection (i) with obtaining all required approvals or consents of any Governmental Authority and (ii) all other communications with any Governmental Authority with respect to the Mergers. In that regard, each Party shall without limitation: (A) promptly notify the other of, and if in writing, furnish the other with copies of (or in the case of oral communications, advise the other orally of) any communications from or with any Governmental Authority with respect to the Mergers, (B) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written (or any proposed oral) communications with any such Governmental Authority with respect to the Mergers, (C) not participate in any meeting or oral communication with any such Governmental Authority with respect to the Mergers unless it consults with the other in advance and, to the extent permitted by such Governmental Authority, gives the other the opportunity to attend and participate thereat, (D) furnish the other with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof, including summaries of any meetings or communications the other is not permitted to participate in pursuant to clause (C) above unless prohibited by such Governmental Authority) between it and any such Governmental Authority with respect to the Mergers, and (E) furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority. Each of GrafTech and the Partnership, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. In addition, GrafTech shall state in all written material communications with its customers and suppliers and shall post on its website that (i) it has agreed to acquire the Partnership subject to regulatory review and approval, (ii) neither GrafTech nor any of its subsidiaries is operating the Partnership’s business prior to the Closing Date and that during such time the Partnership will continue to operate independently, and (iii) all customer contracts of the Partnership whether entered into prior to the date hereof or thereafter will be honored by GrafTech and Parent following the Closing.
Appears in 1 contract
Reasonable Best Efforts to Consummate. (a) Except for approvals or requirements under the applicable Antitrust Laws, which are specified in Sections 7.03(b)-(e) below, each of the Parties shall cooperate, and use its reasonable best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate the Mergers Merger and the other transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable after the date hereof including using reasonable best efforts to (i) cause the conditions precedent set forth in Article VIII to be satisfied, (ii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations (including the expiration or termination of any waiting periods) from Governmental Authorities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and take all steps as may be necessary to avoid, or have terminated if begun, any Proceedings by any Governmental Authority, (iii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations from third parties, (iv) defend any investigations or Proceedings, whether judicial or administrative, challenging this Agreement, any other Transaction Agreement, or the consummation of the transactions contemplated hereby, including seeking to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or Order entered into by any Governmental Authority which could prevent or delay the Mergers Merger or the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements and (v) execute and deliver additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the other Transaction Agreements.
(b) Notwithstanding the foregoing, subject to the requirements of applicable Antitrust Laws, GrafTech and the Partnership Company agree to cooperate and to use their reasonable best efforts to obtain, as promptly as practicable following the date hereof, any Requisite Regulatory Approvals required for the Closing under the HSR Act, EC Merger Regulation and any other applicable Antitrust Laws and to respond to any government requests for information thereunder, to contest and resist in good faith any action thereunder, and use reasonable best efforts to have lifted or overturned any governmental Order that restricts, prevents, or prohibits the consummation of the transaction contemplated by this Agreement (an “Antitrust Order”). As of the date hereof, to each of the PartnershipCompany’s and GrafTech’s respective knowledge, the Requisite Regulatory Approvals required for the Closing under applicable Antitrust Laws are under the HSR Act and competition laws Laws of Ukraine, Russia, Greece and Turkey. Each of GrafTech and the Partnership Company will use their reasonable best efforts to make any filings required under the HSR Act within 10 Business Days from the date hereof and all other notifications, filings, or registrations required under applicable antitrust and competition Laws as soon as reasonably practicable from the date hereof.
(c) Notwithstanding the foregoing, in the event any such litigation, negotiation or other action is not reasonably capable of being resolved by the End Date, GrafTech shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of GrafTech, the Partnership Company or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of GrafTech, the Partnership Company or their respective Subsidiaries, 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 have the effect of preventing or delaying the Effective Time beyond the End Date, Date other than such actions that could reasonably be expected to have a Material Adverse Effect on GrafTech.
(d) Each of GrafTech and the Partnership Company shall use its reasonable best efforts to “substantially comply” as promptly as practicable with any request for additional information or documentary material issued by a Governmental Authority under 15 U.S.C. Sec 18(e) and in conjunction with the transactions contemplated by this Agreement (a “Second Request”). Each of GrafTech and the Partnership Company will certify to substantial compliance with respect thereto as promptly as practicable, but in no event more than two (2) months after the date of the Second Request plus any additional time as agreed by the Parties. Each of GrafTech and the Partnership Company agrees to take all reasonable steps to assert, defend, and support certification of substantial compliance with any Second Request, and notwithstanding anything to the contrary in this Agreement, GrafTech and the Partnership Company each shall pay and be responsible for 50% of the fees and expenses of ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel to the Partnership Company in connection with a Second Request (which shall be included in the Combined Transaction Expenses to the extent paid by the PartnershipCompany). Neither Party shall take any action to extend or toll the waiting period requirements of the HSR Act or provide the Department of Justice any additional time to consider, investigate, or review the transactions contemplated by this Agreement, in each case to a date beyond the End Date, without the consent of the other Party (not to be unreasonably withheld). Each of GrafTech and the Partnership Company agrees to give such advance notices as may be required (including, if necessary, notice of an anticipated closing date), and to otherwise reasonably cooperate to give effect to the rights of the other set forth in this Section 7.03.
(e) Each of GrafTech and the Partnership Company shall cooperate regarding, and keep the other reasonably apprised of the status of, matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection (i) with obtaining all required approvals or consents of any Governmental Authority and (ii) all other communications with any Governmental Authority with respect to the MergersMerger. In that regard, each Party shall without limitation: (A) promptly notify the other of, and if in writing, furnish the other with copies of (or in the case of oral communications, advise the other orally of) any communications from or with any Governmental Authority with respect to the MergersMerger, (B) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written (or any proposed oral) communications with any such Governmental Authority with respect to the MergersMerger, (C) not participate in any meeting or oral communication with any such Governmental Authority with respect to the Mergers Merger unless it consults with the other in advance and, to the extent permitted by such Governmental Authority, gives the other the opportunity to attend and participate thereat, (D) furnish the other with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof, including summaries of any meetings or communications the other is not permitted to participate in pursuant to clause (C) above unless prohibited by such Governmental Authority) between it and any such Governmental Authority with respect to the MergersMerger, and (E) furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority. Each of GrafTech and the PartnershipCompany, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. In addition, GrafTech shall state in all written material communications with its customers and suppliers and shall post on its website that (i) it has agreed to acquire the Partnership Company subject to regulatory review and approval, (ii) neither GrafTech nor any of its subsidiaries Subsidiaries is operating the PartnershipCompany’s business prior to the Closing Date and that during such time the Partnership Company will continue to operate independently, and (iii) all customer contracts of the Partnership Company whether entered into prior to the date hereof or thereafter will be honored by GrafTech and Parent following the Closing.
Appears in 1 contract
Reasonable Best Efforts to Consummate. (a) Except for approvals or requirements under Subject to the applicable Antitrust Laws, which are specified in Sections 7.03(b)-(e) belowterms and conditions of this Agreement, each of the Parties parties hereto shall cooperate(and shall cause its respective subsidiaries, and if any, to) use its all reasonable best efforts to take, or cause to be taken, all actionactions, and to do, do or cause to be done, all things necessary, proper or advisable under applicable Laws laws and regulations to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable after the date hereof practicable, including using its reasonable best efforts to (i) prepare, execute and deliver such instruments and take or cause the conditions precedent set forth in Article VIII to be satisfiedtaken such actions as any other party shall reasonably request, and (ii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations (including after consultation with the expiration or termination of any waiting periods) from Governmental Authorities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and take all steps as may be necessary to avoid, or have terminated if begun, any Proceedings by any Governmental Authority, (iii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations from third other parties, (iv) defend obtain any investigations consent, waiver, approval or Proceedings, whether judicial or administrative, challenging this Agreement, authorization from any other Transaction Agreement, or the consummation of the transactions contemplated hereby, including seeking third party required in order to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or Order entered into by any Governmental Authority which could prevent or delay the Mergers or the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements maintain in full force and (v) execute and deliver additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the other Transaction Agreements.<PAGE> 29
(b) Notwithstanding Without limiting the foregoinggenerality of anything contained in Section 6.2(a) or elsewhere in this Agreement, subject each of the parties undertakes and agrees to the requirements of applicable Antitrust Laws, GrafTech and the Partnership agree to cooperate and to use their reasonable best efforts to obtain, file as promptly as practicable following the date hereof, any Requisite Regulatory Approvals required for the Closing under the HSR Act, EC Merger Regulation execution and any other applicable Antitrust Laws and to respond to any government requests for information thereunder, to contest and resist in good faith any action thereunderdelivery of this Agreement, and use reasonable best efforts to have lifted or overturned in any governmental Order that restricts, prevents, or prohibits the consummation of the transaction contemplated by this Agreement (an “Antitrust Order”). As of event within twenty business days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice, Antitrust Division (the "Antitrust Division") and as promptly or reasonably practicable to each make all other required Antitrust Filings. Each of the Partnership’s and GrafTech’s respective knowledgeparties shall (i) respond as promptly as practicable to any inquiries received from the FTC, the Requisite Regulatory Approvals required Antitrust Division or other applicable Governmental Authorities for the Closing under applicable Antitrust Laws are additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Authority; and (ii) not extend any waiting period under the HSR Act and competition laws of Ukraine, Russia, Greece and Turkey. Each of GrafTech and the Partnership will use their reasonable best efforts to make any filings required under the HSR Act within 10 Business Days from the date hereof and all other notifications, filings, or registrations required under applicable antitrust and or competition Laws as soon as reasonably practicable from laws, rules or regulations or enter into any agreement with the date hereof.
(c) Notwithstanding FTC, the foregoing, in the event any such litigation, negotiation Antitrust Division or other action is applicable Governmental Authorities not reasonably capable of being resolved by the End Date, GrafTech shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of GrafTech, the Partnership or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of GrafTech, the Partnership or their respective Subsidiaries, 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 have the effect of preventing or delaying the Effective Time beyond the End Date, other than such actions that could reasonably be expected to have a Material Adverse Effect on GrafTech.
(d) Each of GrafTech and the Partnership shall use its reasonable best efforts to “substantially comply” as promptly as practicable with any request for additional information or documentary material issued by a Governmental Authority under 15 U.S.C. Sec 18(e) and in conjunction with the transactions contemplated by this Agreement (a “Second Request”). Each of GrafTech and the Partnership will certify to substantial compliance with respect thereto as promptly as practicable, but in no event more than two (2) months after the date of the Second Request plus any additional time as agreed by the Parties. Each of GrafTech and the Partnership agrees to take all reasonable steps to assert, defend, and support certification of substantial compliance with any Second Request, and notwithstanding anything to the contrary in this Agreement, GrafTech and the Partnership each shall pay and be responsible for 50% of the fees and expenses of ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel to the Partnership in connection with a Second Request (which shall be included in the Combined Transaction Expenses to the extent paid by the Partnership). Neither Party shall take any action to extend or toll the waiting period requirements of the HSR Act or provide the Department of Justice any additional time to consider, investigate, or review consummate the transactions contemplated by this Agreement, in each case to a date beyond except with the End Date, without the prior written consent of the other Party (not parties hereto. Parent shall use its best efforts to be unreasonably withheld). Each of GrafTech avoid or eliminate each and the Partnership agrees to give such advance notices as every impediment under any antitrust, competition, or trade regulation law that may be required (includingasserted by the FTC, if necessarythe Antitrust Division, notice of an anticipated closing date), and to otherwise reasonably cooperate to give effect to the rights of the any State Attorney General or any other set forth in this Section 7.03.
(e) Each of GrafTech and the Partnership shall cooperate regarding, and keep the other reasonably apprised of the status of, matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection (i) with obtaining all required approvals or consents of any Governmental Authority and (ii) all other communications with any Governmental Authority with respect to the MergersMerger (including if so requested by the Company by agreeing to dispose of, hold separate or accept limitations on the activities of, any businesses or assets) so as to enable the Closing to occur as soon as reasonably possible, but in any event in sufficient time to ensure that the Effective Time occurs before the Termination Date (as defined below). In that regard, each Party Each party shall without limitation: (Ai) promptly notify the other ofparty of any written communication to that party or its affiliates from any Governmental Authority in respect of any filing, and if in writinginvestigation or inquiry concerning this Agreement or the Merger and, furnish subject to applicable Law, permit the other with copies party to review in advance any proposed written communication to any of the foregoing; (ii) not agree to participate, or to permit its affiliates to participate, in the case of oral communications, advise the other orally of) any communications from substantive meeting or discussion with any Governmental Authority with in respect to of any filing, investigation or inquiry concerning this Agreement or the Mergers, (B) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written (or any proposed oral) communications with any such Governmental Authority with respect to the Mergers, (C) not participate in any meeting or oral communication with any such Governmental Authority with respect to the Mergers Merger unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate thereat, in such meeting; and (Diii) furnish the other party with copies of all correspondence, filings filings, and communications (and memoranda setting forth the substance thereof) between them and their affiliates and their respective representatives on the one hand, including summaries and any Governmental Authority or members of any meetings or communications their respective staffs on the other is not permitted to participate in pursuant to clause (C) above unless prohibited by such Governmental Authority) between it and any such Governmental Authority hand, with respect to this Agreement and the MergersMerger.
(c) Subject to the terms and conditions of this Agreement, each party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable, including by defending against any lawsuits, actions or proceedings, judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, and seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and nonappealable vacated or reversed.
(Ed) furnish The Company and Parent will cooperate and use their respective reasonable best efforts to obtain as promptly as practicable all consents, approvals and waivers required by third persons so that all Company Permits and contracts of the other with such necessary information Company and reasonable assistance as each Company Subsidiary will remain in full force and effect after the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority. Each of GrafTech and the Partnership, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided Effective Time.
(e) Notwithstanding anything to the other under contrary in this Section as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. In addition, GrafTech shall state in all written material communications with its customers and suppliers and shall post on its website that (i) it has agreed to acquire the Partnership subject to regulatory review and approvalAgreement, (iix) neither GrafTech Parent nor any of its subsidiaries is operating shall be required in connection with any Company Regulatory Approval or Parent Insurance Approval, (i) to take any action that would be reasonably expected to adversely affect Parent or its affiliates (other than the Partnership’s business prior to Company) following the Closing Date and that during such time the Partnership will continue to operate independently, and (iii) all customer contracts consummation of the Partnership whether entered into prior to the date hereof or thereafter will be honored by GrafTech and Parent following the Closing.Merger in any material respect,
Appears in 1 contract
Reasonable Best Efforts to Consummate. (a) Except for approvals or requirements under Subject to the applicable Antitrust Laws, which are specified in Sections 7.03(b)-(e) belowterms and conditions of this Agreement, each of the Parties parties to this Agreement shall cooperate(and shall cause its respective subsidiaries, and if any, to) use its reasonable best efforts to take, or cause to be taken, take all action, actions and to do, or cause to be done, do all things necessary, proper or advisable under applicable Laws to consummate the Mergers and the other transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable after the date hereof including using reasonable best efforts to (i) cause the conditions precedent set forth in Article VIII to be satisfied, (ii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations (including the expiration or termination of any waiting periods) from Governmental Authorities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and take all steps as may be necessary to avoid, or have terminated if begun, any Proceedings by any Governmental Authority, (iii) obtain all necessary waivers, consents, approvals, permits, Orders or authorizations from third parties, (iv) defend any investigations or Proceedings, whether judicial or administrative, challenging this Agreement, any other Transaction Agreement, or the consummation of the transactions contemplated hereby, including seeking to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or Order entered into by any Governmental Authority which could prevent or delay the Mergers or the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements and (v) as promptly as practicable, including using its reasonable best efforts to prepare, execute and deliver such instruments and take or cause to be taken such actions as any other party shall reasonably request.
(b) Without limiting the generality of anything contained in Section 4.5(a) or elsewhere in this Agreement, each of the parties undertakes and agrees to file as soon as practicable, and in any event within fifteen business days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice, Antitrust Division (the “Antitrust Division”) and as promptly as reasonably practicable to make all other required filings under the antitrust or competition laws of other jurisdictions. Each of the parties shall (i) respond as promptly as practicable to any inquiries received from the FTC, the Antitrust Division or other applicable Governmental Authorities for additional instruments necessary information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Authority; and (ii) not extend any waiting period under the HSR Act and other applicable Antitrust or competition laws, rules or regulations or enter into any agreement with the FTC, the Antitrust Division or other applicable Governmental Authorities not to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the other Transaction Agreements.
(b) Notwithstanding the foregoing, subject to the requirements of applicable Antitrust Laws, GrafTech and the Partnership agree to cooperate and to use their reasonable best efforts to obtain, as promptly as practicable following the date hereof, any Requisite Regulatory Approvals required for the Closing under the HSR Act, EC Merger Regulation and any other applicable Antitrust Laws and to respond to any government requests for information thereunder, to contest and resist in good faith any action thereunder, and use reasonable best efforts to have lifted or overturned any governmental Order that restricts, prevents, or prohibits the consummation of the transaction contemplated by this Agreement (an “Antitrust Order”). As of the date hereof, to each of the Partnership’s and GrafTech’s respective knowledge, the Requisite Regulatory Approvals required for the Closing under applicable Antitrust Laws are under the HSR Act and competition laws of Ukraine, Russia, Greece and Turkey. Each of GrafTech and the Partnership will use their reasonable best efforts to make any filings required under the HSR Act within 10 Business Days from the date hereof and all other notifications, filings, or registrations required under applicable antitrust and competition Laws as soon as reasonably practicable from the date hereof.
(c) Notwithstanding the foregoing, in the event any such litigation, negotiation or other action is not reasonably capable of being resolved by the End Date, GrafTech shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of GrafTech, the Partnership or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of GrafTech, the Partnership or their respective Subsidiaries, 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 have the effect of preventing or delaying the Effective Time beyond the End Date, other than such actions that could reasonably be expected to have a Material Adverse Effect on GrafTech.
(d) Each of GrafTech and the Partnership shall use its reasonable best efforts to “substantially comply” as promptly as practicable with any request for additional information or documentary material issued by a Governmental Authority under 15 U.S.C. Sec 18(e) and in conjunction with the transactions contemplated by this Agreement (a “Second Request”). Each of GrafTech and the Partnership will certify to substantial compliance with respect thereto as promptly as practicable, but in no event more than two (2) months after the date of the Second Request plus any additional time as agreed by the Parties. Each of GrafTech and the Partnership agrees to take all reasonable steps to assert, defend, and support certification of substantial compliance with any Second Request, and notwithstanding anything to the contrary in buy this Agreement, GrafTech and except with the Partnership each shall pay and be responsible for 50% of the fees and expenses of ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel to the Partnership in connection with a Second Request (which shall be included in the Combined Transaction Expenses to the extent paid by the Partnership). Neither Party shall take any action to extend or toll the waiting period requirements of the HSR Act or provide the Department of Justice any additional time to consider, investigate, or review the transactions contemplated by this Agreement, in each case to a date beyond the End Date, without the prior written consent of the other Party (not to be unreasonably withheld)parties hereto. Each of GrafTech and the Partnership agrees to give such advance notices as may be required party shall (including, if necessary, notice of an anticipated closing date), and to otherwise reasonably cooperate to give effect to the rights of the other set forth in this Section 7.03.
(e) Each of GrafTech and the Partnership shall cooperate regarding, and keep the other reasonably apprised of the status of, matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection (i) with obtaining all required approvals or consents of any Governmental Authority and (ii) all other communications with any Governmental Authority with respect to the Mergers. In that regard, each Party shall without limitation: (Ax) promptly notify the other ofparty of any written communication to that party or its affiliates from any Governmental Authority and, and if in writingsubject to applicable law, furnish permit the other with copies party to review in advance any proposed written communication to any of the foregoing; (y) not agree to participate, or to permit its affiliates to participate, in the case of oral communications, advise the other orally of) any communications from substantive meeting or discussion with any Governmental Authority with in respect to the Mergersof any filings, (B) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written (investigation or any proposed oral) communications with any such Governmental Authority with respect to the Mergers, (C) not participate in any meeting or oral communication with any such Governmental Authority with respect to the Mergers inquiry concerning this Agreement unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate thereat, in such meeting; and (Dz) furnish the other party with copies of all correspondence, filings filings, and communications (and memoranda setting forth the substance thereof) between them and their affiliates and their respective Representatives on the one hand, including summaries of and any meetings Governmental Authority or communications members or their respective staffs on the other is not permitted to participate in pursuant to clause (C) above unless prohibited by such Governmental Authority) between it and any such Governmental Authority hand, with respect to the Mergers, and (E) furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority. Each of GrafTech and the Partnership, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as “outside counsel onlyAgreement.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. In addition, GrafTech shall state in all written material communications with its customers and suppliers and shall post on its website that (i) it has agreed to acquire the Partnership subject to regulatory review and approval, (ii) neither GrafTech nor any of its subsidiaries is operating the Partnership’s business prior to the Closing Date and that during such time the Partnership will continue to operate independently, and (iii) all customer contracts of the Partnership whether entered into prior to the date hereof or thereafter will be honored by GrafTech and Parent following the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cornerstone Therapeutics Inc)