Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement. (b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement. (c) Without limiting the generality of Section 6.03(a): (i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ. (ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement. (iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby. (iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger. (d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement. (e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement. (f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group), Merger Agreement (SJW Group)
Required Actions. (a) Subject to the terms hereof, including Section 6.03(c), Parent and conditions of this Agreement, SJW, Merger Sub and CTWS the Company shall each use its respective reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other parties party in doing, all things necessary, proper or advisable under applicable Laws to carry out consummate and make effective the intent transactions contemplated hereby as promptly as practicable, (ii) as promptly as practicable, obtain from any Governmental Entity or any other third party any Consents required to be obtained or made by Parent or the Company or any of their respective Subsidiaries in connection with the authorization, execution and purposes delivery of this Agreement and the consummation of the transactions contemplated hereby, (iii) defend any lawsuits or other Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (iv) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Securities Act and the Exchange Act, and any other applicable Federal or state securities Laws, and (B) any other applicable Law and (v) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and make effectiveto fully carry out the purposes of, as soon as reasonably practicable, the Merger this Agreement. Parent and the Company shall cooperate with each other transactions contemplated by this Agreement.
(b) Without limiting in connection with the generality making of Section 6.03(a)all such filings, SJW including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith all reasonable additions, deletions or changes suggested in connection therewith. Parent and the SJW Board and CTWS and the CTWS Board, as the case may be, Company shall use their respective reasonable 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 transactions contemplated hereby.
(xb) In connection with and without limiting Section 6.03(a), the Company and the Company Board and Parent and the Parent Board shall (i) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (yii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement hereby may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting Upon the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following terms and subject to the date terms and conditions of this Agreement, SJW Parent and CTWS the Company agree, and shall cause each shall file of their respective Subsidiaries, to cooperate and use their respective reasonable best efforts to (i) obtain any FCC Consents, PSC Consents, and Local Consents, and to make any registrations, declarations, notices or filings, if any, necessary for the consummation of the transactions contemplated hereby, (ii) in consultation and cooperation with the United States Federal Trade Commission other, as promptly as practicable file all applications required to be filed with the FCC (the “FTCFCC Applications”), any State Regulators (the “PSC Applications”) and any Localities to obtain the Antitrust Division FCC Consents, PSC Consents and Local Consents, respectively, (iii) respond as promptly as practicable to any requests of the United States Department of Justice (the “DOJ”) Notification and Report Forms FCC, any State Regulator, or any Locality for information relating to any FCC Application or PSC Application, as applicable; provided, that each of Parent and the transactions contemplated herein required Company shall consult with the other before communicating with any Governmental Entity relating to these matters, and to the extent permitted by applicable Law and reasonably practicable shall enable the HSR Act. Without limitation other party to participate in each such communication, and (iv) cure, not later than the Effective Time, any material violations or defaults under any FCC Rules or rules of Section 6.03(c)(iiany State Regulator or Locality.
(d) belowUpon the terms and subject to the terms and conditions of this Agreement, SJW Parent and CTWS the Company agree, and shall cause each shall of their respective Subsidiaries, to cooperate and to use their respective reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions Consents of any Governmental Entity, keep each and to make any registrations, declarations, notices or filings, if any, necessary for Closing under the HSR Act, and any other apprised Federal, state or foreign Law designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization, restraint of trade or regulation of foreign investment (collectively, “Antitrust Laws”), to respond to any requests of any Governmental Entity for information under any Antitrust Law, to secure the status expiration or termination of matters relating any applicable waiting period, to the completion of resolve any objections asserted with respect to the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received hereby raised by the SJW or CTWS, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect and to such transactions. No party shall independently participate in contest and resist any meetingaction, including any legislative, administrative or engage in judicial action, and to prevent the entry of any substantive conversationcourt order and to have vacated, with lifted, reversed or overturned any Governmental Entity in respect to any such filingsJudgment (whether temporary, investigation preliminary or other inquiry without using reasonable best efforts to give (to permanent) that restricts, prevents or prohibits the extent feasible and appropriate) the other party prior notice consummation of the meeting Merger or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. any other transactions contemplated hereby under any Antitrust Law.
(e) Subject to applicable Law and the instructions of any Governmental Entity, Parent and the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider Company shall in good faith cooperate, consult and consider the other’s views of in order to jointly develop (but subject to Parent’s final approval (not to be unreasonably withheld, conditioned or delayed)), (x) the other in connection with, strategy for obtaining any proposed written communication by such party to Consents from any Governmental Entity in connection with any analyses(including the FCC Consents, appearances, presentations, memoranda, briefs, arguments, opinions PSC Consents and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws Local Consents) in connection with the Merger and the other transactions contemplated by this Agreement.
hereby and (iiiy) Each of SJW the positions to be taken and CTWS shall (A) give the other party prompt notice of the commencement regulatory actions to be requested in any filing or threat of commencement of any legal proceeding by or before any submission with a Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party hereby and in connection with any investigation or other inquiry or Action by or before, or any negotiations with, a Governmental Entity relating to the Merger or any of and the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals hereby and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and all other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Mergerregulatory matters incidental thereto.
(df) Notwithstanding any other provision For the purposes of this AgreementSection 6.03, SJW “reasonable best efforts” shall include taking any and all actions necessary to obtain the Consents of any Governmental Entity (including the FCC Consents, PSC Consents and Local Consents) required to consummate the Merger and the SJW other transactions contemplated hereby prior to the End Date; provided that nothing in this Agreement shall permit the Company or the Company Subsidiaries shall be required (without the prior written consent of Parent) or require Parent or the Parent Subsidiaries to sell, divest or hold separate or otherwise take or commit refrain from taking, or agree to take or refrain from taking, any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action wouldactions that, individually or in the aggregate, have or would be reasonably be expected likely to have a Regulatory either a Parent Material Adverse EffectEffect or Company Material Adverse Effect (each a “Burdensome Condition”). In additionFor the avoidance of doubt, neither SJW nor notwithstanding any request or consent of its Affiliates Parent to do so, in no event shall be under any obligation to take any action under this Section 6.03(d) if the FTC Company or the DOJ authorizes its staff Company Subsidiaries be required to seek submit to a preliminary injunction or restraining order to enjoin Burdensome Condition unless such Burdensome Condition is conditioned in all respects upon the consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding Merger and will not be effective for any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or purpose until after the MergerEffective Time, and any such Burdensome Condition imposed on the freedom Company or the Company Subsidiaries at the request of action or with the consent of SJW Parent shall not affect any representation or warranty of the Company under this Agreement or any of SJW’s Affiliates with respect to, condition under Section 7.01 or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates Section 7.03 to the extent necessary obligation of Parent and Merger Sub to satisfy effect the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementMerger.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Hawaiian Telcom Holdco, Inc.), Merger Agreement (Cincinnati Bell Inc)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and necessary to consummate and make effective, as soon as reasonably possible, the Mergers and the other transactions contemplated by this Agreement in accordance with the terms hereof. Without limiting the generality of the foregoing, upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger Mergers and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective including using reasonable best efforts to accomplish the following: (xi) take obtain all action reasonably appropriate to ensure that no takeover statute required consents, approvals or similar statute waivers from, or regulation is participation in other discussions or becomes applicable to this Agreementnegotiations with, the Merger third parties, including as required under any Contract, (ii) defend any lawsuits or any other transaction contemplated by legal proceedings, whether judicial or administrative, challenging this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that consummation of the Merger Mergers and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW (iii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and CTWS each shall file authorizations from Governmental Entities and (iv) make all necessary registrations, declarations and filings with any Governmental Entity, including filings required under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, as the case may be, or any of their respective Subsidiaries, from any third Justice; provided that no party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sellpay (and MSLO and its Subsidiaries shall not pay or agree to pay without the prior written consent of Sequential, divest which consent shall not be unreasonably withheld, conditioned or hold separate or otherwise take or commit to take delayed) any action that limits its freedomfee, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture penalty or other action would, individually consideration to any third party for any consent or in approval required for the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding Agreement under any other provision Contract. In furtherance and not in limitation of the foregoing, Sequential and MSLO each shall, no later than ten Business Days following the execution and delivery of this Agreement, CTWS file a Notification and Report Form pursuant to the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates HSR Act with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated hereby and use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.3 necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as practicable. Sequential shall be responsible for any filing and other similar fees payable in connection with the filing of the Notification and Report Form and any other submissions under the HSR Act.
(b) Sequential shall give prompt notice to MSLO, and MSLO shall give prompt notice to Sequential, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties hereto shall use its respective reasonable best efforts to 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 under necessary (subject to any applicable Laws to carry out the intent and purposes of this Agreement and Laws) to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement in accordance with the terms hereof; provided, however, that (i) nothing in this Section 6.4 shall prohibit AirTran from taking any action expressly contemplated by Section 5.6 and (ii) this Section 6.4 shall not be deemed to change the specific standard of conduct or level of efforts explicitly required to be expended with respect to any particular matter set forth in this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts If any Takeover Statute becomes or is deemed to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes become applicable to this Agreement, the Merger acquisition of shares of AirTran Common Stock or any other transaction contemplated by this Agreement and (y) if any takeover statute AirTran Derivative Securities, the Merger, or similar statute or regulation becomes applicable the related voting power pursuant to this Agreement, the Merger or any the other transaction transactions contemplated by this Agreement, AirTran and Southwest shall take such commercially reasonable action as may be necessary to render such statutes inapplicable to all action reasonably appropriate of the foregoing or to ensure that the Merger and the other transactions contemplated by this Agreement hereby may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting Agreement and otherwise to minimize the generality effect of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of such statutes on this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) belowMerger, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iiic) Each of SJW In connection with and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreementwithout limiting Section 6.4(a), (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including promptly following the execution and delivery of this Agreement, Southwest and AirTran shall provide all documentsnecessary notices, certificatesapplications, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) requests to, and enter into discussions with, the Governmental Authorities from whom consents or nonactions are required to be made and given by such party obtained in connection with the consummation of the Merger and the other transactions contemplated by this Agreement in order to obtain all such required consents or nonactions from such Governmental Authorities and eliminate each and every other impediment that may be asserted by such Governmental Authorities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably practicable.
(d) Southwest and AirTran, each acting reasonably and in good faith, shall be entitled to jointly participate in any Proceedings or negotiations with any Governmental Authority (including the DOJ, DOT, FAA, or any court) relating to a Proceeding in connection with antitrust, competition, trade regulation, or any other matters relating to the Merger, including any decisions about timing and strategy (which, in the case of litigation, includes a decision to defend, settle, or not to pursue the litigation), in connection with such Proceeding and any communications with any Governmental Authority relating to any contemplated or proposed resolution of such Proceeding; provided, that Southwest shall be entitled to direct any such Proceedings or negotiations with any Governmental Authority (including the DOJ, DOT, FAA, or any court) relating to a Proceeding.
(e) In connection with and without limiting the generality of the foregoing, each of AirTran and Southwest shall:
(i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement (but in any event, with respect to clause (A) below, within ten Business Days following the date of this Agreement; ), (CA) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary registrations, declarations, notices, and filings relating to the Merger with other Governmental Authorities under any other antitrust, competition, trade regulation, or similar Laws;
(ii) use reasonable best efforts to obtain each approvalfurnish to the other all assistance, consentcooperation, ratificationand information required for any such registration, permissiondeclaration, waiver notice, or filing and in order to achieve the effects set forth in Section 6.4(c);
(iii) give the other reasonable prior notice of authorization any such registration, declaration, notice, or filing and, to the extent reasonably practicable, of any communication with any Governmental Authority regarding the Merger (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant with respect to any of the actions referred to in Section 6.4(c)), and permit the other to review (with the exception of the HSR Act filing and Second Request production) and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with, any such registration, declaration, notice, filing, or communication;
(iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Authority or any other authority enforcing applicable Law by such party antitrust, competition, trade regulation, or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation, or similar matters;
(v) without limiting the Merger generality of Section 6.4(e)(iv), (A) use reasonable best efforts to achieve Substantial Compliance as promptly as practicable with any request for additional information or any of documentary material issued by a Governmental Authority under 15 U.S.C. Sect. 18a(e) and in conjunction with the other transactions contemplated by this AgreementAgreement (a “Second Request”), including (B) certify Substantial Compliance with any Second Request as promptly as practicable after the SJW Regulatory Approvals and the CTWS Regulatory Approvals; date of such Second Request, and (DC) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating take all commercially reasonable definitive agreements actions necessary to assert, defend, and support its certification of Substantial Compliance with such Second Request; and
(vi) (A) keep each other reasonably apprised with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred meeting or substantive conversation with any Governmental Authority in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness respect of the action is contingent upon Merger (including with respect to any of the consummation actions referred to in Section 6.4(c)), (B) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence, or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority, and (C) furnish the other party with copies of all correspondence, filings (with the exception of the HSR Act filing and Second Request production), communications, and memoranda setting forth the substance thereof between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Authority or members of any Governmental Authority’s staff, on the other hand, with respect to this Agreement and the Merger.
(df) Notwithstanding any other provision anything else contained herein, the provisions of this AgreementSection 6.4 shall not be construed to require (i) Southwest or any Southwest Subsidiary to (A) sell or otherwise dispose of, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate and agree to sell or otherwise take dispose of, assets, categories of assets, or commit businesses of Southwest, the Southwest Subsidiaries, or the Combined Company that would materially impair the expected benefits (taken as a whole) as of the date hereof of the Merger to Southwest, (B) terminate relationships or contractual rights or obligations of Southwest, the Southwest Subsidiaries, or the Combined Company that would materially impair the expected benefits (taken as a whole) as of the date hereof of the Merger to Southwest, (C) terminate any relevant venture or other arrangement of Southwest, the Southwest Subsidiaries, or the Combined Company that would materially impair the expected benefits (taken as a whole) as of the date hereof of the Merger to Southwest, or (D) effectuate any other change or restructuring of Southwest, the Southwest Subsidiaries, or the Combined Company (or, in each case, to enter into agreements or stipulate to the entry of an order or decree with any Governmental Authority) that would materially impair the expected benefits (taken as a whole) as of the date hereof of the Merger to Southwest or (ii) Southwest or any Southwest Subsidiary or AirTran or any AirTran Subsidiary to undertake any other efforts or to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action wouldif the taking of such efforts or action would result in a Southwest Material Adverse Effect or be reasonably likely, individually or in the aggregate, have to prevent or reasonably be expected materially impair the ability of Southwest or Merger Sub to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of perform its Affiliates shall be under any obligation to take any action obligations under this Section 6.03(d) if the FTC Agreement or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of consummate the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall Agreement or a AirTran Material Adverse Effect or be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action wouldreasonably likely, individually or in the aggregate, have to prevent or reasonably be expected materially impair the ability of AirTran to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of perform its Affiliates shall be under any obligation to take any action obligations under this Section 6.03(e) if the FTC Agreement or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of consummate the transactions contemplated by this Agreement, as applicable.
(fg) Notwithstanding any other provision AirTran shall give prompt notice to Southwest, and Southwest shall give prompt notice to AirTran, of this Agreement, (i) neither SJW nor any of its Affiliates representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and material respect or (ii) neither CTWS nor the material failure by it to comply with or satisfy any covenant, condition, or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants, or agreements of its Affiliates the parties or any the conditions to the obligations of their respective Representatives shall cooperate the parties under this Agreement; provided further, that a failure to comply with any third party in seeking regulatory clearance this Section 6.4(g) will not constitute the failure of any CTWS Takeover Proposalcondition set forth in ARTICLE VII to be satisfied unless the underlying inaccuracy or breach would independently result in the failure of a condition set forth in ARTICLE VII to be satisfied.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Airtran Holdings Inc), Agreement and Plan of Merger (Southwest Airlines Co)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and necessary to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this AgreementAgreement in accordance with the terms hereof; provided, however, that nothing in this Section 6.3 shall prohibit either party from taking any action expressly contemplated by Section 5.5.
(b) Without In connection with and without limiting the generality of Section 6.03(a6.3(a), SJW United and the SJW United Board and CTWS Continental and the CTWS Board, as the case may be, Continental Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate necessary to ensure that no takeover statute Takeover Statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any takeover statute Takeover Statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As 6.3(a), promptly as reasonably practicable following the date execution and delivery by the parties of this AgreementAgreement United and Continental shall provide all necessary notices, SJW applications and CTWS each shall file with requests to, and enter into discussions with, the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this AgreementAgreement in order to obtain all such required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be asserted by such Governmental Entities, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shallin each case with respect to the Merger, so as promptly to enable the Closing to occur as soon as reasonably practicable. To the extent necessary in order to accomplish the foregoing, United and Continental shall jointly propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on, (A) supply the other with ownership or operation by United, Continental or any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of their respective Subsidiaries of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised portion of the status business, properties or assets of matters relating to the completion of the transactions contemplated therebyUnited, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, Continental or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect (B) the ability of United to such transactions. No party shall independently participate in any meetingacquire or hold, or engage exercise full right of ownership of, any shares of the capital stock of the United Subsidiaries or Continental or the Continental Subsidiaries, including the right to vote, or (C) United or any of its Subsidiaries effectively controlling the business or operations of United and the United Subsidiaries or Continental and the Continental Subsidiaries; provided, however, that neither Continental nor United shall be required pursuant to this Section 6.3(c) to propose, commit to or effect any action that is not conditioned upon the consummation of the Merger. If the actions taken by Continental and United pursuant to the immediately preceding sentence do not result in any substantive conversationthe conditions set forth in Section 7.1(d) and (f) being satisfied, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give then each of Continental and United shall jointly (to the extent feasible and appropriatepracticable) the other party prior notice of the meeting initiate and/or participate in any proceedings, whether judicial or conversation andadministrative, unless prohibited in order to (i) oppose or defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, Agreement and (Cii) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Injunction resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 7.1(d) or (f) not to be satisfied, provided that Continental and United shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the CTWS Regulatory Approvals; foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of Continental and United shall:
(i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement (but in any event, with respect to clause (A) below, within five Business Days following the date of this Agreement, and with respect to clause (B) below, at a time necessary to ensure that the EU Extension Date occurs prior to the Latest Possible End Date), (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (B) all appropriate filings required pursuant to European Community Council Regulation No. 139/2004 (the “EU Merger Regulation”), and (C) all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.3(c);
(iii) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 6.3(c)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with, any such registration, declaration, notice, filing or communication;
(iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters;
(v) without limiting the generality of Section 6.3(d)(iv), (A) use its reasonable best efforts to achieve Substantial Compliance as promptly as practicable with any request for additional information or documentary material issued by a Governmental Entity under 15 U.S.C. Sect. 18a(e) and in conjunction with the transactions contemplated by this Agreement (a “Second Request”), (B) certify Substantial Compliance with any Second Request as promptly as practicable after the date of such Second Request, but in no event later than September 30, 2010, (C) take all actions necessary to assert, defend and support its certification of Substantial Compliance with such Second Request and (D) obtain not extend any approvalwaiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities to delay, consentor otherwise not to consummate as soon as practicable, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) transactions contemplated by this Agreement except with the prior written consent of the CTWS Disclosure Letterother parties hereto, which consent may be withheld in the sole discretion of the non-requesting party; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including by entering into and negotiating commercially reasonable definitive agreements with respect to any of the actions referred to in Section 6.3(c)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such parties meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity, and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger.
(e) Notwithstanding anything else contained herein, the provisions of this Section 6.3 shall not be construed to require United or any United Subsidiary or Continental or any Continental Subsidiary to undertake any efforts or to take any action if the taking of such efforts or action is or would reasonably be expected to result (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) in a Material Adverse Effect on either United or Continental, as applicable.
(f) Continental shall give prompt notice to United, and United shall give prompt notice to Continental, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material Contractsrespect or (ii) the failure by it to comply with or satisfy in any material respect any covenant, offering customary fees, discounts and other incentives condition or agreement to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewithbe complied with or satisfied by it under this Agreement; provided, however, that SJW and CTWS are no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement; provided further, that a failure to comply with this Section 6.3(f) will not required constitute the failure of any condition set forth in Article VII to take any such action be satisfied unless the effectiveness underlying inaccuracy or breach would independently result in the failure of the action is contingent upon the consummation of the Mergera condition set forth in Article VII to be satisfied.
(dg) Notwithstanding any other provision Immediately following the execution and delivery of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any Agreement by each of the respective businessesparties hereto, product lines or assets United, as sole stockholder of SJWMerger Sub, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by will adopt this Agreement.
(eh) Notwithstanding any other provision Each of this AgreementContinental and United shall use its reasonable best efforts to cause the United Common Stock to be listed on either the NASDAQ or the NYSE, CTWS as reasonably agreed upon by Continental and the CTWS Subsidiaries shall be required to sellUnited, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless Effective Time and to cause the extent trading symbol for the United Common Stock on such divestiture or other action would, individually or in exchange after the aggregate, have or Effective Time to be the trading symbol reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated agreed upon by this AgreementContinental and United.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Ual Corp /De/), Merger Agreement (Continental Airlines Inc /De/)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall each Party hereto will use its respective reasonable best efforts to 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 proper, or advisable under applicable Laws to carry out the intent and purposes of this Agreement and applicable laws and regulations to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and obtaining as promptly as practicable all Company Necessary Consents or Cal Dive Necessary Consents, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations, and clearances necessary to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger and the other transactions contemplated by this Agreement (collectively, the “Required Approvals”). In furtherance and not in limitation of the foregoing, each of Cal Dive and the Company agrees to prepare, as promptly as reasonably practicable, and to make (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and (B) all other necessary filings with other Governmental Entities relating to the Merger at such time as Cal Dive and the Company reasonably determine in their good faith judgment will permit the consummation of the transactions contemplated hereby in a timely basis, and, to prepare and supply as promptly as practicable any additional information or documentation that may be requested pursuant to such laws or by such Governmental Entities, and to use reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and the receipt of Required Approvals under such other laws or from such third parties and Governmental Entities as soon as practicable. In furtherance and not in limitation of the foregoing, each of Cal Dive and the Company agrees not to extend any waiting period under the HSR Act or enter into any agreement with the FTC or the DOJ not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the Other Party.
(b) Without limiting The Parties shall each cooperate and consult with each other in connection with the generality actions referenced in Section 5.3(a) to obtain all Required Approvals. In particular, each Party shall to the extent permitted by law (i) furnish to the Other Party as promptly as reasonably practicable any information concerning such Party and its business, properties, and personnel as the Other Party may reasonably request in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, and (ii) permit the Other Party to review in advance, and accept all of Section 6.03(athe Other Party’s reasonable comments in connection with, any proposed written communication between it and any Governmental Entity. In addition, each Party shall (i) promptly inform the Other Party of any communication (or other correspondence or memoranda) received by such Party from, or given by such Party to, the DOJ, the FTC, or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, and (ii) consult with the Other Party in advance, to the extent practicable and not prohibited by law, of any meeting or conference with the DOJ, the FTC, or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC, or such other applicable Governmental Entity or other Person, give the Other Party the opportunity to attend and participate in such meetings and conferences.
(c) In furtherance and not in limitation of the covenants of the Parties contained in Sections 5.3(a) and 5.3(b), SJW if Cal Dive and the SJW Board and CTWS and the CTWS BoardCompany agree, as the case may be, they shall use their respective reasonable best efforts to defend all litigation under the federal or state antitrust laws of the United States which if adversely determined would, in the reasonable opinion of Cal Dive and the Company (xbased on the advice of outside counsel to each), be likely to result in the failure of the condition set forth in Section 6.1(a) take all action reasonably appropriate to ensure that no be satisfied, and to appeal any order, judgment or decree, which if not reversed, would result in the failure of such condition. Notwithstanding the foregoing, nothing contained in this Agreement shall be construed so as to require Cal Dive, Merger Sub, or the Company, or any of their respective Subsidiaries or Affiliates, to sell, license, dispose of, or hold separate, or to operate in any specified manner, any assets or businesses of Cal Dive, Merger Sub, the Company, or the Surviving Company or any of their respective Subsidiaries or Affiliates (or to require Cal Dive, Merger Sub, the Company, or any of their respective Subsidiaries or Affiliates to agree to any of the foregoing). The obligations of each Party under Section 5.3(a) to use its reasonable best efforts with respect to antitrust matters shall be limited to compliance with the reporting provisions of the HSR Act and with its obligations under this Section 5.3(c).
(d) Each Party hereto and its respective Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Merger, or any other transaction transactions contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreementhereby, take all action reasonably appropriate necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting hereby and otherwise to minimize the generality effect of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of such statute or regulation on this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUCMerger, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Cal Dive International, Inc.), Merger Agreement (Horizon Offshore Inc)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW the Company and the SJW Company Board and CTWS Parent and the CTWS Board, as the case may be, Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), the Company and Parent shall promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity of any jurisdiction Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and which the parties may reasonably deem appropriate, and (C) subject to applicable Law the limitations set forth in Section 6.03(e), the Company and Parent shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or approval or otherwise, the instructions of any Governmental Entitysale, keep each other apprised of divestiture or disposition of, or prohibition or limitation on the status of matters relating ownership or operation of, or requirements or undertakings with respect to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received conduct by the SJW or CTWSCompany, as the case may be, Parent or any of their respective Subsidiaries, from of any third party and/or portion of the business, properties or assets of the Company, Parent or any Governmental Entity with respect of their respective Subsidiaries; provided, however, that neither Parent nor the Company shall be required pursuant to such transactionsthis Section 6.03(c) to commit to or effect any action that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to result in a Substantial Detriment. No party If the actions taken by Parent and the Company pursuant to the immediately preceding sentence do not result in the conditions set forth in Section 7.01(d), (e) and (f) being satisfied, then, during the term of this Agreement, each of Parent and the Company shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect jointly (to any such filings, investigation or other inquiry without using the extent practicable) use their reasonable best efforts to give initiate and/or participate in any proceedings, whether judicial or administrative, in order to (to the extent feasible and appropriatei) the other party prior notice of the meeting oppose or conversation and, unless prohibited defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, and/or (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contractsappeal if necessary, offering customary feesany Legal Restraint resulting from any suit, discounts and action or other incentives to such parties on commercially reasonable terms and paying legal proceeding that would cause any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions condition set forth in Section 7.01(d), unless (e) or (f) not to be satisfied; provided that Parent and the Company shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the extent foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of Parent and the Company shall:
(i) make or cause to be made, in consultation and cooperation with the other and (A) within twenty days after the date of this Agreement (or such divestiture other time as the parties mutually agree), an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (B) within fifteen days after the effectiveness of the Indian Competition Law (or such other action wouldtime as the parties mutually agree), all necessary registrations, declarations, notices and filings relating to the Merger pursuant to the Indian Competition Law, if any, and (C) within thirty days after the date of this Agreement (or such other time as the parties mutually agree), all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) (A) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, all applications required or advisable to be filed with the FCC (the “FCC Applications”) to effect the transfer of control of the Company Licenses, as necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, and use its reasonable best efforts to respond in consultation and cooperation with the other and as promptly as practicable to any additional requests for information received from the FCC by any party to an FCC Application and (B) use its reasonable best efforts to cure not later than the Effective Time any violations or defaults under any FCC Rules, except for such violations or defaults that, individually or in the aggregate, have or would not reasonably be expected to have a Regulatory Material Adverse Effect. In additionSubstantial Detriment;
(iii) use its reasonable best efforts to furnish to the other all assistance, neither SJW nor cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c);
(iv) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of its Affiliates shall be under any obligation the actions referred to take any action under in Section 6.03(c) and in this Section 6.03(d)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;
(v) if use its reasonable best efforts to respond as promptly as reasonably practicable under the FTC circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the DOJ authorizes its staff HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to seek a preliminary injunction or restraining order to enjoin consummation consummate any of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this Section 6.03(d)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, except that any materials concerning valuation of the other party may be redacted or withheld.
(e) Notwithstanding any other provision anything else contained herein but subject to the proviso of the second sentence of Section 6.03(c), the provisions of this AgreementSection 6.03 shall not be construed to require the Company, CTWS and the CTWS Parent, or their respective Subsidiaries shall be required to selloffer, divest or hold separate or otherwise take or take, commit to take or accept any action that limits its freedomaction, restrictions or limitations (“Actions”) of or on the Company, Parent, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s their respective Subsidiaries, or any to permit such Actions without the prior written consent of the respective businessesother party, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent if such divestiture or other action wouldActions, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(f) Notwithstanding any other provision of anything else contained in this Agreement, (i) during the term of this Agreement neither SJW the Company nor any of its Affiliates or any of their respective Representatives shall cooperate with any third other party in seeking regulatory clearance of any SJW Takeover Proposal Proposal.
(g) Parent shall give prompt notice to the Company, and the Company shall give prompt notice to Parent, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) neither CTWS nor the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of its Affiliates the parties or any the conditions to the obligations of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposalthe parties under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties hereto shall use its respective reasonable best efforts to 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 under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, effective the Transactions as soon promptly as reasonably practicable, the Merger and the other transactions contemplated by this Agreementincluding using reasonable best efforts to obtain or make all necessary or appropriate filings under applicable Law.
(b) Without In connection with and without limiting the generality of Section 6.03(a7.03(a), SJW the Company and the SJW Company Board and CTWS Parent and the CTWS Board, as the case may be, Parent Board shall use their respective reasonable best efforts to (xi) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation Takeover Law is or becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreement the Transactions and (yii) if any takeover statute or similar statute or regulation Takeover Law becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreementthe Transactions, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreementthe applicable Transaction Agreements.
(c) Without In connection with and without limiting Section 7.03(a), Parent and the generality Company shall cooperate in good faith to seek to obtain all consents, approvals and waivers required by the terms of any material Contracts with third parties or material Permits in connection with the Transactions.
(d) In connection with and without limiting Section 6.03(a):
7.03(a), each of the Company and Parent shall promptly (i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, make or cause to be prepared and filed, made as promptly as reasonably practicable after (and, in the date event that the Company and Parent determine in good faith that filing of this Agreement, all filings, submissions Notification and registrations required to be made Report Forms pursuant to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity HSR Act with respect to the Merger is required, such filings shall be made within ten Business Days following the date of such determination; provided that, in the period between the fifth Business Day prior to the Form S-4 being declared effective by the SEC and the other transactions contemplated fifth Business Day after the Form S-4 is declared effective by this Agreementthe SEC, including the Company and Parent shall make a determination in good faith as to whether such HSR filing is required and, if such determination is that such HSR filing is required, such filing shall be made no later than the sixth Business Day after the Form S-4 is declared effective by the SEC), in consultation and cooperation with the other, all SJW Regulatory Approvals necessary registrations, declarations, notices and all CTWS Regulatory Approvals. Each of CTWS filings relating to the Merger with any Governmental Authorities under any applicable antitrust, competition, trade regulation or similar Laws and SJW shall, (ii) use its reasonable best efforts to respond as promptly as reasonably practicablepracticable under the circumstances to any inquiries received from any Governmental Authority for additional information or documentation in connection with antitrust, (A) supply the other with any information which reasonably may be required competition, trade regulation or similar matters, in each case in order to effectuate such filings, (B) supply any additional information which reasonably may be obtain all required by a Consents or nonactions from Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity Authorities with respect to such transactions. No party shall independently participate the Merger so as to enable the Closing to occur as soon as reasonably possible, and in any meeting, or engage in any substantive conversation, event before the End Date. The Company and Parent shall jointly control strategy for obtaining all required Consents and nonactions required from Governmental Authorities with any Governmental Entity in respect to any such filingsthe Merger.
(e) In connection with and without limiting the generality of the foregoing, investigation or other inquiry without using each of Parent and the Company shall:
(i) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 7.03(d);
(ii) give (the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent feasible and appropriate) reasonably practicable, of any communication with any Governmental Authority regarding the other party prior notice Merger (including with respect to any of the meeting or conversation andactions referred to in Section 7.03(d) and in this Section 7.03(e)), unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analysessuch registration, appearancesdeclaration, presentationsnotice, memoranda, briefs, arguments, opinions and proposals made filing or submitted by or on behalf of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.communication; and
(iii) Each of SJW and CTWS shall unless prohibited by applicable Law or by the applicable Governmental Authority, (A) give to the other party prompt notice extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Authority in respect of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity Merger (including with respect to the Merger or any of the other transactions contemplated by actions referred to in Section 7.03(d) and in this AgreementSection 7.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party hereto is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, or responding to requests or objections made by any Governmental Authority and (E) furnish the other party informed as to hereto with copies of all substantive correspondence, filings and communications (and memoranda setting forth the status substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Authority or members of any such legal proceeding or threatGovernmental Authority’s staff, on the other hand, with respect to this Agreement and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts the Merger, subject to contest and resist any such action or proceeding and to have vacatedredaction of competitively sensitive information, 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 information regarding the valuation of the Merger Company or the other transactions contemplated herebyParent or information subject to attorney client privilege.
(ivf) Each of SJW Parent and CTWS shall: (A) reasonably cooperate with the Company shall advise the other partyin writing promptly after becoming aware of any change or event that, execute individually or in the aggregate with all past changes and deliver such further documentsevents, certificates, agreements and instruments and take such other actions as may has had or would reasonably be reasonably requested by the other party expected to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of have a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements Adverse Effect with respect to such parties Person, to cause any of the conditions set forth in Article VIII not to be satisfied, or to materially delay or impede the ability of such material Contracts, offering customary fees, discounts and other incentives party to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewithconsummate the Merger; provided, however, that SJW and CTWS are not required to take any no such action unless notification shall affect the effectiveness representations, warranties, covenants or agreements of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be parties hereto under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Berkeley Lights, Inc.), Merger Agreement (IsoPlexis Corp)
Required Actions. (a) Subject to the terms The Company and conditions of this AgreementParent shall, SJWas promptly as possible, Merger Sub and CTWS shall use its respective reasonable best efforts to take(i) make, or cause to be takenmade, all actionsfilings and submissions required under any applicable Law (provided, that neither the Company, on the one hand, nor Parent, on the other hand, shall be in breach of the foregoing covenant if such party’s failure to timely file is a result of the other party’s failure to provide the requisite materials and signatures or otherwise take the requisite steps necessary for such filing), and do(ii) thereafter use commercially reasonable efforts to obtain, or cause to be doneobtained, all consents, authorizations, orders and assist and cooperate approvals from all Governmental Authorities whether federal, state, local, or foreign, which may be required in connection with the other parties in doing, all things necessary, proper or advisable consummation of the transactions contemplated under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this AgreementTransaction Documents. The Company and its Subsidiaries and Representatives shall cooperate with Parent and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The Parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting The Company shall deliver all notices to, and obtain all consents from, all Third Parties that are expressly set forth in Section 5.05 of the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this AgreementDisclosure Schedules.
(c) Without limiting the generality of the parties’ undertakings pursuant to Section 6.03(a):5.07(a) and Section 5.07(b), each of the parties hereto shall use commercially reasonable efforts to:
(i) As respond promptly as reasonably practicable following the date of this Agreement, SJW to any inquiries and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply furnish any additional information which reasonably may be required requested by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity Authority regarding antitrust or other matters with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.Transaction Document;
(dii) Notwithstanding resolve any other provision objections that may be asserted by the applicable Governmental Authority as promptly as practicable and avoid the imposition of this Agreement, SJW and any order or the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take taking of any action that limits its freedomwould restrain, alter or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.Agreement or any Transaction Document; and
(eiii) Notwithstanding in the event any other provision of this Agreement, CTWS and Governmental Order adversely affecting the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates parties to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of consummate the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates Agreement or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates Transaction Document has been issued, to have such Governmental Order vacated or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposallifted.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (OncoCyte Corp), Merger Agreement (OncoCyte Corp)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW subject to Section 1A(x) and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action provided that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any each of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the terms and conditions set forth in Section 7.01(d4C are satisfied or waived, upon the written instruction of the Company (or, in the case of a stock sale, the holders of a majority of the Class B Common Stock then outstanding), if the Drag Transaction is structured as (a) a merger or consolidation, each Stockholder (other than Class B Permitted Holders) shall (I) vote its Specified Equity Securities and any other voting securities of the Company over which such holder has voting control, and take all other reasonably necessary or desirable actions within its control (including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), to approve such merger or consolidation, whether by written consent or at a meeting of stockholders, (II) take all actions necessary (other than such actions that require payment of out-of-pocket costs that are not customary and reasonable unless such out-of-pocket costs that are not customary or reasonable are or are to be reimbursed to such Stockholder) to Transfer the applicable Specified Equity Securities held by such Stockholder in such Drag Transaction, including the delivery of share certificates, letters of transmittal, stock powers, tax forms and other customary and reasonable forms, in each case to the extent required from such divestiture holder by the terms of this Section 4 at the closing of such Drag Transaction, but specifically excluding releases, non-competition agreements or other action woulddocuments restricting the right of such Person to make future investments, individually and (III) waive all dissenters’ rights, appraisal rights and similar rights (including claims for breach of fiduciary duty) in connection with such merger or consolidation (which waiver shall be effective with or without a separate written waiver given by such holder of Specified Equity Securities at the time of such Drag Transaction), (b) a stock sale, each Stockholder (other than Class B Permitted Holders) shall agree to sell, and shall sell, on the terms and conditions of such Drag Transaction at the closing of such Drag Transaction, the same proportion of its applicable Specified Equity Securities as the proportion that the Class B Permitted Holders are, in the aggregate, have selling, on the terms and conditions of such Drag Transaction, including taking the actions contemplated by clause (II) of the foregoing clause (a) to the extent applicable to such Drag Transaction, or (c) a sale of assets, each Stockholder (other than Class B Permitted Holders) shall (I) vote its shares of Specified Equity Securities and any other voting securities of the Company over which such holder has voting control, and take all other reasonably be expected necessary or desirable actions within its control (including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), to have approve such sale and any subsequent liquidation of the Company or other distribution of the proceeds therefrom, whether by written consent or at a Regulatory Material Adverse Effect. In additionstockholders’ meeting and (II) waive all dissenters’ rights, neither SJW nor appraisal rights and similar rights (including claims for breach of fiduciary duty) in connection with such sale and any subsequent liquidation or other distribution of its Affiliates proceeds therefrom (which waiver shall be under any obligation to take any action under this Section 6.03(deffective with or without a separate written waiver given by such holder of Specified Equity Securities at the time of such Drag Transaction).
(ii) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation The closing of the transactions contemplated by this AgreementSection 4B shall take place on such date and at such place and time as shall be designated by the Person or Persons giving the notice contemplated by the first sentence of Section 4B(i), which shall be no sooner than five (5) Business Days after delivery of such notice. Additionally, if Stockholders (other than Class B Permitted Holders) are asked to execute a stockholder consent pursuant to Section 4B(i) or to otherwise execute letters of transmittal, stock powers, tax forms or other customary and reasonable forms pursuant to Section 4B(i), the Stockholders (other than Class B Permitted Holders) shall execute and return such stockholder consent or other documents to the Company within five (5) Business Days of the receipt of written notice requesting the execution thereof.
(eiii) Notwithstanding Each Stockholder (other than any other provision Class B Permitted Holder) participating in such proposed Drag Transaction pursuant to this Section 4B shall be obligated to enter into Standard Obligations in each case to the extent, and only to the extent, that each Class B Permitted Holder participating in such proposed Drag Transaction is entering into corresponding obligations in connection with such proposed Drag Transaction that are no more favorable to such Class B Permitted Holder.
(iv) For the avoidance of this Agreementdoubt, CTWS subject to Section 1A(x), Section 3C and any requirements of applicable Law, the Company and the CTWS Subsidiaries Class B Permitted Holders shall be required entitled to sell, divest consummate a Drag Transaction regardless of whether the Company or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom holders of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any a majority of the respective businesses, product lines or assets shares of SJW, CTWS or any of Class B Common Stock elect to exercise their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action rights under this Section 6.03(e) if 4 and, in such event, the FTC or Stockholders shall have all rights available under applicable Law, including the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementDelaware General Corporate Law.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Investor Rights Agreement (Lbi Media Inc), Investor Rights Agreement (Lbi Media Inc)
Required Actions. (a) Subject to the terms and conditions of this Agreement, each of SJW, Merger Sub and CTWS shall, and shall cause its respective Subsidiaries to, use its respective reasonable best efforts to 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 under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable The parties acknowledge that following the date of this AgreementOriginal Execution Date, SJW and CTWS each shall file filed with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act and that on April 27, 2018, the FTC granted early termination of the waiting period under the HSR Act. Without limitation of Section 6.03(c)(ii) below, from and after the Execution Date, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period (A) make such additional filings with the DOJ and FTC under the HSR Act as may be required in connection with the Merger and SJW and CTWS shall each, as promptly as reasonably practicablethe transactions contemplated herein, (AB) supply the other with any information which may be required in order to effectuate such filings and (BC) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each The parties acknowledge that applications for approval of the Merger were filed with each of the MPUC on May 4, 2018, and the PURA on July 18, 2018, respectively (each, a “State Approval Application”). From and after the Execution Date, each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, any and all additional filings, submissions and registrations required to be made to the PURA and the MPUC, including any applicable amendments to the State Approval Applications, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, including, for purposes of this clause (B) in connection with the Order Instituting Investigation issued on July 20, 2018, by the California Public Utilities Commission (the “CPUC”), and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d7.01(b); provided, unless and no such divestiture or other action shall be required (i) to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(dor (ii) if the FTC effectiveness of such divestiture or action is not contingent upon the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementMerger.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d7.01(b); provided, unless and no such divestiture or other action shall be required (i) to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(eor (ii) if the FTC effectiveness of such divestiture or action is not contingent upon the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementMerger.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW the Company and the SJW Company Board and CTWS Parent and the CTWS Board, as the case may be, Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), the Company and Parent shall promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriateEntities, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep in 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 the SJW or CTWS, 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. No party the Merger, so as to enable the Closing to occur as soon as reasonably possible.
(d) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using use its respective reasonable best efforts to give (i) cause the Merger to the extent feasible be consummated as soon as practicable, (ii) make promptly any required submissions and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to filings under applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any to Governmental Entity Entities with respect to the Merger or any of the other transactions contemplated by this AgreementMerger, (Biii) promptly furnish information required in connection with such submissions and filing to such Governmental Entities or under such Antitrust Laws, and (iv) keep the other party parties reasonably informed as with respect to the status of any such legal proceeding or threatsubmissions and filings to such Governmental Entities under Antitrust Laws, and (C) cooperate in all material respects including with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shallrespect to: (A) reasonably cooperate the receipt of any non-action, action, clearance, consent, approval or waiver, (B) the expiration of any waiting period, (C) the commencement or proposed or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under Antitrust Laws or other applicable Laws, and (D) the nature and status of any objections raised or proposed or threatened to be raised under Antitrust Laws or other applicable Laws with respect to the transactions contemplated by this Agreement. For purposes hereof, “Antitrust Laws” means the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, and all applicable Foreign Antitrust Laws and all other partyapplicable Laws issued by a Governmental Entities that are designed or intended to prohibit, execute restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. In furtherance of the foregoing: (x) each party hereto agrees to (1) make an appropriate filing of a Notification and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by Report Form pursuant to the other party HSR Act with respect to evidence or reflect the transactions contemplated by this Agreement as soon as practicable and in any event within ten (including 10) Business Days of the execution date hereof (unless the parties otherwise agree to a different date), (2) supply as soon as practicable any additional information and delivery of all documents, certificates, agreements documentary material that may be requested pursuant to the HSR Act and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C3) use its reasonable best efforts to obtain each approvaltake, consentor cause to be taken, ratificationall other actions consistent with this Section 6.03(d), permission, waiver Section 6.03(e) and Section 6.03(f) necessary to cause the expiration or termination of authorization the applicable waiting periods under the HSR Act (including any authorization of a Governmental Entityextensions thereof) required as soon as practicable and (y) each party agrees to (1) make or cause to be obtained from made the appropriate filings under any Foreign Antitrust Laws as soon as practicable, (2) supply as soon as practical any additional information and documentary material that may be required or requested by any Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; Entity and (D3) obtain any approval, consent, ratification, permission, waiver use its reasonable best efforts to take or authorization required cause to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements taken all other actions consistent with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC and Section 6.03(f) as necessary to obtain any necessary approvals, consents, waivers, permits, authorizations or the DOJ authorizes its staff to seek a preliminary injunction other actions or restraining order to enjoin consummation of the transactions contemplated by this Agreementnon-actions from each Governmental Entity as soon as practicable.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Required Actions. (a) Subject to the terms Purchaser and conditions of this Agreementits Affiliates, SJWincluding, Merger Sub if applicable, its UPE, and CTWS Parent shall use its exercise their respective reasonable best efforts to 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 necessary, proper or advisable under any applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as effective in the most expeditious manner reasonably practicablepracticable the Pre-Closing Restructuring, the Merger Sale and the other transactions contemplated by this Agreement, including using reasonable best efforts to take all actions necessary to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity required to be obtained or made by Purchaser (and, if applicable, its UPE) or Parent or any of their respective Subsidiaries in connection with the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement.
(b) Without limiting Purchaser (and, if applicable, its UPE) and Parent shall file or cause to be filed, any filings (including draft filings) or notifications under applicable Competition and Foreign Investment Laws within the generality timeframes set out in Section 8.1(a) of Section 6.03(a)the Parent Disclosure Schedule. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to any Competition and Foreign Investment Laws, SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, parties shall use their respective reasonable best efforts to (x) take all action respond to such requests, as applicable, as promptly as reasonably appropriate possible and produce documents, responses to ensure that no takeover statute interrogatories or similar statute other information on a rolling basis. Purchaser and its Affiliates, including, if applicable, its UPE, shall not consent to any voluntary extension of any statutory deadline or regulation is waiting period or becomes applicable to this Agreement, any voluntary delay of the Merger consummation of the transactions contemplated hereby or by the Ancillary Agreements or any other transaction contemplated by this Agreement filing made pursuant to any Competition and Foreign Investment Laws unless Parent has given its prior written consent to such extension or delay or withdrawal (ynot to be unreasonably withheld, conditioned or delayed).
(c) if any takeover statute or similar statute or regulation becomes applicable Purchaser and its Affiliates shall, after good faith consultation with Parent in respect of ▇▇▇▇▇▇’s views and comments, have the right to this Agreement, control and direct all strategy in connection with the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that review of the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreementany Governmental Entity, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating including any submission to, litigation by, or negotiations with, any Governmental Entity or other Person related to the transactions contemplated herein required hereby under any Competition and Foreign Investment Law.
(d) Prior to the Closing, to the extent not prohibited by the HSR Act. Without limitation of Section 6.03(c)(ii) belowapplicable Law, SJW Parent and CTWS each Purchaser shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply work cooperatively with the other party in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any information which may be required in order to effectuate such filings and exemptions by, any Governmental Entity, (B) supply any additional information which reasonably may be required by promptly inform the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUCother party, and all if in writing, furnish the other applicationsparty with copies of (or, noticesin the case of oral communications, registrations, filings, reports and advise the other documents required to be filed with party of) any material substantive communication from any Governmental Entity with respect to regarding the Merger and Sale or the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material substantive written or oral communication by or submission with or to any such party to Governmental Entity, and (D) not participate in any material substantive meeting with any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give , the other party prompt notice of the commencement Sale or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to any Competition and Foreign Investment Laws in connection with this Agreement, the Sale or the other transactions contemplated by this Agreement or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and gives the other party the opportunity to attend and participate thereat.
(e) Any disclosures, provisions of information or rights to participate by one party to the other party under this Section 5.3 may be made on a counsel-only basis, to the extent such party deems it advisable and necessary, and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be). Such designated disclosures or information may be redacted (A) to remove references concerning the valuation of the Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchaser and their respective Affiliates, (B) keep the other party informed as necessary to the status of any such legal proceeding or threat, comply with contractual arrangements and (C) cooperate in all material respects with each other as necessary to address reasonable privilege or confidentiality concerns.
(f) Purchaser and its Affiliates and Parent shall use their respective reasonable best efforts to contest and resist any resolve such action or proceeding and to have vacatedobjections, liftedif any, 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 or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested asserted by any Governmental Entity with respect to the other party to evidence or reflect Pre-Closing Restructuring, the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger Sale and the other transactions contemplated by this Agreement; Agreement under any Competition and Foreign Investment Laws.
(Cg) use For purposes of this Section 5.3, “reasonable best efforts efforts” of Purchaser and its Affiliates shall include (i) offering, negotiating, agreeing to, consenting to, and effecting the sale, divestiture, transfer, disposal or other conveyance of assets, businesses or interests of the Business, (ii) amending any joint venture or other arrangement of the Transferred Entities or the Business and (iii) otherwise taking or committing to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with take actions that after the Merger Closing would limit Purchaser’s or any of its Affiliates or the other transactions contemplated by this Agreement, including Transferred Entities or the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the Business’ freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW any assets, businesses or interests of the Business; provided, that (A) no party will be required to take or agree or commit to take any action that is not conditioned upon the Closing, (B) Parent shall not be obligated to take or agree or commit to take any action that relates to the Retained Business or ▇▇▇▇ Assets, (C) Purchaser shall not be obligated to commit to take or agree or commit to take any action that relates to Purchaser’s and SJW’s Subsidiariesits Affiliates’ assets or business, CTWS or CTWS’s Subsidiaries(D) Purchaser shall not be obligated to commit to the sale, divestiture, or disposition of, any of the respective businesses, product lines or assets of SJWthe Business under clause (i) above (1) at more than three facilities or (2) representing, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or greater than $300,000,000 in annual revenues (as measured in the year ended December 31, 2024) and (E) Purchaser shall not be obligated to commit to any action under clauses (ii) and (iii) above that would reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation material to take any action under this Section 6.03(d) if the FTC Business or the DOJ authorizes its staff to seek Transferred Entities, taken as a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreementwhole.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Allison Transmission Holdings Inc), Stock Purchase Agreement (DANA Inc)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this AgreementTransactions.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW the Company and the SJW Company Board and CTWS Parent and the CTWS Board, as the case may be, Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreement the Transactions and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreementthe Transactions, take all action reasonably appropriate to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by the applicable Transaction Agreements.
(c) In connection with and without limiting Section 6.03(a), Parent and the Company shall cooperate in good faith to seek to obtain all consents, approvals and waivers required by the terms of any material Contracts with third parties or material Permits in connection with the transactions contemplated hereby.
(d) In connection with and without limiting Section 6.03(a), the Company and Parent shall promptly enter into discussions with the Governmental Entities from whom Consents or nonactions are required to be obtained in connection with the consummation of the Merger and the other transactions contemplated by this Agreement may in order to obtain all such required Consents or nonactions from such Governmental Entities, in each case 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 End Date. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 6.03(f), the Company and Parent shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or approval or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation of, or requirements or undertakings with respect to the conduct by the Company, Parent or any of their respective Subsidiaries of, any portion of the business, properties or assets of the Company, Parent or any of their respective Subsidiaries; provided, however, that neither Parent nor the Company shall be consummated required pursuant to this Section 6.03(d) to commit to or effect any action, prohibition, limitation, requirement or undertaking that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to have a Substantial Detriment. If the actions taken by Parent and the Company pursuant to the immediately preceding sentence do not result in the conditions set forth in Sections 7.01(c) and (d) being satisfied, then, during the term of this Agreement, each of Parent and the Company shall use their reasonable best efforts to initiate or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Transactions or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to block consummation of the Transactions, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 7.01(c) or (d) not to be satisfied.
(e) In connection with and without limiting the generality of the foregoing, each of Parent and the Company shall:
(i) make or cause to be made as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable and in any event no later than 15 Business Days following the date of this Agreement), SJW in consultation and CTWS each shall file cooperation with the United States Federal Trade Commission (other, all filings required under the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms HSR Act relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(iiMerger;
(ii) below, SJW and CTWS each shall use its reasonable best efforts to obtain early termination furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(d);
(iii) give the other reasonable prior notice of any waiting period under such registration, declaration, submission, notice or filing and, to the HSR Act and SJW and CTWS shall each, as promptly as extent reasonably practicable, (A) supply the other with of any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin Section 6.03(d) and in this Section 6.03(e)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, submission, notice, filing or communication;
(iv) use its reasonable best efforts to respond as promptly as reasonably practicable to any proposed written communication by such party to inquiries or requests received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentary material in connection with any analysesantitrust, appearancescompetition, presentations, memoranda, briefs, arguments, opinions and proposals made trade regulation or submitted by or on behalf of any party in connection with proceedings similar matters (including a “second request” under or relating to the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect authorities not to the Merger or consummate any of the other transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(d) and in this Section 6.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, or responding to requests or objections made by any Governmental Entity and (E) furnish the other party informed as to with copies of all correspondence, filings and communications (and memoranda setting forth the status substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any such legal proceeding or threatGovernmental Entity’s staff, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or on the other transactions contemplated herebyhand, with respect to this Agreement and the Merger, subject to redaction of competitively sensitive information, valuation material or information subject to attorney client privilege.
(ivf) Each Notwithstanding anything else contained herein but subject to the proviso of SJW and CTWS shall: (A) reasonably cooperate with the second sentence of Section 6.03(d), the provisions of this Section 6.03 shall not be construed to require the Company, Parent or their respective Subsidiaries to offer, take, commit to or accept any action, restrictions or limitations of or on the Company, Parent or their respective Subsidiaries, or to permit such actions, restrictions or limitations without the prior written consent of the other party, execute and deliver if such further documentsactions, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence restrictions or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action wouldlimitations, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Martin Marietta Materials Inc), Merger Agreement (Martin Marietta Materials Inc)
Required Actions. (a) Subject to the terms and conditions specified herein, each of this Agreement, SJW, Merger Sub Buyer and CTWS ABI shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other party in doing, all things reasonably necessary, proper or advisable (subject to applicable Law) to satisfy each condition to the other party’s obligations contained in this Agreement in order to consummate and make effective the transactions contemplated by this Agreement as promptly as reasonably practicable but in any event by the Long Stop Date; provided that this Agreement shall not in any way modify or expand ABI’s obligations under the ABI Cooperation Agreement, including ABI’s obligations under Section 3 thereof. Without limiting the generality of the foregoing, ABI shall not enter into or otherwise consent to any amendment, modification or waiver of the ABI Cooperation Agreement that would reasonably be expected to be adverse to Buyer or the Acquired Business without the prior written consent of Buyer.
(b) Buyer and ABI shall each take (subject (x) in the case of ABI, to the proviso in Section 5.01(a) and (y) in the case of Buyer, to the proviso in this Section 5.01(b)) all actions necessary to obtain all consents, licenses, permits, waivers, approvals, clearances and authorizations or orders of, or nonactions by, any Governmental Authority (collectively, “Consents”) that are required to consummate the transactions contemplated by this Agreement as promptly as reasonably practicable but in any event by the Long Stop Date. In furtherance and not in limitation of the foregoing, Buyer and ABI shall each (subject (x) in the case of ABI, to the proviso in Section 5.01(a) and (y) in the case of Buyer, to the proviso in this Section 5.01(b)) (i) provide all necessary notices, reports, registrations, submissions of information, applications and other filings in connection with obtaining any Consents, (ii) prosecute all such filings and Consents with all appropriate diligence, (iii) furnish all information required to be furnished in connection with the Consents of or filings with any Governmental Authority, and promptly cooperate with the other party hereto and furnish information in connection with any such requirements imposed upon Buyer, ABI or any of their respective Subsidiaries in connection with this Agreement and the transactions contemplated hereby, (iv) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement, (v) facilitate obtaining any final order, writ, judgment or decree approving the transactions contemplated by this Agreement in accordance with the terms hereof, (vi) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed so as to enable the parties hereto to consummate and make effective, as promptly as practicable, the transactions contemplated hereby in accordance with the terms hereof and (vii) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other party hereto in doing, all things necessary, proper in simultaneous coordination, to avoid or advisable under applicable Laws eliminate each and every legal impediment that may be asserted by any Governmental Authority so as to carry out enable the intent and purposes of this Agreement and parties hereto to consummate and make effective, as soon promptly as reasonably practicable, the Merger and the other transactions contemplated hereby in accordance with the terms hereof, including making any amendments or modifications to this Agreement to the extent required by this Agreementany Governmental Authority in connection with obtaining a required Consent; provided that, notwithstanding the foregoing or anything to the contrary contained herein, to the extent that, to obtain the Consent of any Governmental Authority, it is necessary or required to undertake one or more divestitures or other remedies that, individually or in the aggregate, would have a Substantial Adverse Impact on the JV, Buyer shall have the right to consent (or not) in its sole discretion to such divestitures or other remedies.
(bc) Without limiting Each of Buyer and ABI will consult and cooperate with the generality of Section 6.03(a), SJW and other (including in relation to any parallel merger review process resulting from the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction transactions contemplated by this Agreement and (ythe ABI Transaction) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection withother, any proposed written communication by such party to any Governmental Entity 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 proceedings under or involving any Governmental Authority relating to the HSR ActConsents, except that materials may be redacted to address reasonable privilege or confidentiality concerns and to prevent the exchange of confidential information prohibited by applicable Law; (ii) promptly advise the other’s counsel of any written or material oral communication to or from any Governmental Authority with respect to the Consents; (iii) not participate in any meeting or discussion with any Governmental Authority in respect of any Consent without first consulting with the other’s counsel and, unless prohibited by such Governmental Authority, giving the other’s counsel the opportunity to attend; and (iv) promptly furnish the other’s counsel with copies of all correspondence, filings, and written communications between such party and any Governmental Authority with respect to the Consents, except that materials may be redacted to address reasonable privilege or confidentiality concerns and to prevent the exchange of confidential information prohibited by applicable Law. To the extent permitted by applicable Law, Buyer and ABI shall coordinate and cooperate fully with each other antitrust Laws or any applicable state Laws in exchanging such information and providing such assistance as the other party may reasonably request in connection with the Merger and the other transactions contemplated by this Agreementforegoing.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 2 contracts
Sources: Purchase Agreement (Anheuser-Busch InBev S.A.), Purchase Agreement (Molson Coors Brewing Co)
Required Actions. (a) Subject Sellers and Purchaser shall, and shall cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) submit to the KPSC and the WVPSC all required petitions, declarations and filings within sixty (60) days following the Effective Date in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, (ii) file with the United States Federal Trade Commission and the United States Department of Justice the Notification and Report Form under the HSR Act required in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby within, unless otherwise agreed in writing by Sellers and Purchaser, sixty (60) days of the Effective Date, and as promptly as practicable supply additional information, if any, requested in connection herewith pursuant to the HSR Act, (iii) submit to FERC all filings necessary and required under the FPA pursuant to Section 203 of the FPA within sixty (60) days of the Effective Date in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, (iv) file a joint voluntary notice or declaration in respect of the transactions contemplated by this Agreement pursuant to the DPA within thirty (30) days of the Effective Date, and, after submission of the declaration, if (x) pursuant to 31 C.F.R. 800.407(a)(1), CFIUS requests that the Sellers and Purchaser file a joint voluntary notice or (y) pursuant to 31 C.F.R. 801.407(a)(2), CFIUS informs the Sellers and Purchaser that CFIUS is not able to complete action on the basis of the declaration and, in each case, if the Purchaser in its sole discretion determines to file a joint voluntary notice, then as soon as practicable thereafter but no later than thirty (30) days following the date of such notification from CFIUS, file a joint voluntary notice pursuant to the DPA for the purpose of receiving CFIUS Clearance as soon as practicable, (v) negotiate, prepare and file as promptly as reasonably practicable all other necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including with respect to the Required Regulatory Approvals and the ▇▇▇▇▇▇▇▇ Plant Approvals), and (vi) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals and the ▇▇▇▇▇▇▇▇ Plant Approvals). Each Party shall, and shall cause its Affiliates to, consult and cooperate with the other Parties as to the appropriate time of all such filings and notifications, furnish to the other Parties such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Sellers and Purchaser shall have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Parties or any of their Affiliates in connection with the transactions contemplated hereby.
(b) Purchaser and Sellers, acting reasonably and in good faith, shall coordinate, and Sellers shall cause the Acquired Companies to coordinate, in the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals and the Additional Regulatory Filings and Consents), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Sellers, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this AgreementAgreement and the consummation of the transactions contemplated hereby. Purchaser and Sellers, SJWacting reasonably and in good faith, Merger Sub shall coordinate, and CTWS Sellers shall cause the Acquired Companies to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals and the Additional Regulatory Filings and Consents); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals and the Additional Regulatory Filings and Consents), each of Sellers and Purchaser shall (and shall cause its Affiliates to): (i) inform the other Parties in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Parties, and take into account the comments of the other Parties in connection with any of the matters covered by Section 4.5(a); (iii) permit Representatives of the other Parties to participate in any such communications, meetings, or other contacts; (iv) notify the other Parties of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Parties with copies of all written communications with any Governmental Entity relating to any of the foregoing; provided, however, that any materials exchanged in connection with this Section 4.5 may be (x) redacted or withheld as necessary to address reasonable privilege or confidentiality concerns (including with respect to other businesses of Purchaser or Sellers or, in each case, their Affiliates), and to remove references concerning the valuation or other competitively sensitive material or (y) provided solely to the outside legal counsel of the other Party, to the extent any Party deems this to be advisable and necessary. Nothing in this Section 4.5 shall require Sellers to expend or relinquish financial resources (including any portion of the sale proceeds of the transactions contemplated herein) to obtain any consent, approval or termination of a waiting period contemplated by this Section 4.5. Purchaser shall take the lead on strategy with respect to the Parties’ efforts to obtain any necessary or advisable consents, clearances, non-objections, expiration or terminations of any waiting periods, authorizations or approvals of any Governmental Entity or under any Laws (including the Required Regulatory Approvals and the Additional Regulatory Filings and Consents), other than the ▇▇▇▇▇▇▇▇ Plant Approvals, as contemplated hereby after considering in good faith all reasonable comments and advice of Sellers (and their counsel), and Sellers shall reasonably cooperate with Purchaser in connection therewith, including taking (and causing its Affiliates, including the Acquired Companies, to take) any actions reasonably requested by Purchaser consistent with this Section 4.5; provided, that, strategy and control with respect to the ▇▇▇▇▇▇▇▇ Plant Approvals shall be governed by Section 4.20(d). Subject to and without limiting Section 4.1, Sellers shall take the lead on strategy with respect to any Rate Proceedings after considering and reflecting in good faith all reasonable comments and advice of Purchaser (and its counsel), and Purchaser shall reasonably cooperate with Sellers in connection therewith. With respect to the CFIUS submissions, Purchaser shall coordinate those submissions, but Sellers shall exclusively control information submitted with respect to Sellers, and the Parties shall agree upon any language or representations relating to the transactions contemplated by this Agreement before such information is submitted.
(c) Without limiting the foregoing, Purchaser shall not, and shall cause its Affiliates not to, take any action, including (i) acquiring or agreeing to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than from Sellers or their Affiliates) or agree to, solicit, offer, propose or recommend any of the foregoing, (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect in any material respect obtaining or making, or the timing of obtaining or making, any consent or approval or expiration or termination of a waiting period contemplated by this Section 4.5. In furtherance of and without limiting any of Purchaser’s covenants and agreements under this Section 4.5, Purchaser shall, and shall cause its Affiliates to use its respective reasonable best efforts to take, or cause to be taken, any and all actions, steps and doto make, or cause to be donemade, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals and the ▇▇▇▇▇▇▇▇ Plant Approvals, in each case, so as to enable the Closing to occur as promptly as practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits any claim asserted in court 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 prior to the Outside Date; provided, however, that such litigation in no way limits the obligation of Purchaser to use its reasonable best efforts, and assist to take any and cooperate with the other parties in doing, all things steps necessary, proper to eliminate each and every impediment and obtain all clearances, consents, approvals (including the Required Regulatory Approvals and the ▇▇▇▇▇▇▇▇ Plant Approvals) and waivers under any antitrust, competition or advisable under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicabletrade regulation Law, the Merger rules and regulations promulgated by the KPSC, the WVPSC, FERC or other Governmental Entity or any other applicable requirement of Law that is asserted by any Governmental Entity or any other party so as to enable the Parties hereto to promptly close the transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a)hereby, SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, Sellers shall use their respective reasonable best efforts to support Purchaser in connection therewith, (C) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, (x) take all action reasonably appropriate the sale, divestiture, licensing or disposition of any assets or businesses of Purchaser or its Affiliates or the Acquired Companies and entering into customary ancillary agreements relating to ensure that no takeover statute such sale, divestiture, licensing or similar statute disposition, or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if the termination, relinquishment, modification, or waiver of existing relationships, ventures, contractual rights, obligations or other arrangements of Purchaser or its subsidiaries, as necessary in order to effect the dissolution of any takeover statute injunction, temporary restraining order or similar statute other Order in any suit or regulation becomes applicable to this Agreementproceeding, which would otherwise have the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that effect of preventing the Merger and consummation of the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following prior to the date of termination of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”D) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) belowentering into any relationships, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall eachventures, contractual rights, obligations or other such arrangements, as promptly as reasonably practicable, (A) supply the other with any information which may be required necessary in order to effectuate such filings and (B) supply effect the dissolution of any additional information injunction, temporary restraining order or other order in any suit or proceeding, which reasonably may be required by would otherwise have the FTC or effect of preventing the DOJ.
(ii) Each consummation of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals Agreement prior to the date of termination of this Agreement and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, (E) agreeing to take any other action as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject in order to applicable Law and the instructions of any Governmental Entity, keep effect each other apprised of the status of matters relating to following: (1) obtaining all Required Regulatory Approvals and ▇▇▇▇▇▇▇▇ Plant Approvals as soon as reasonably practicable and in any event before the completion of Outside Date, (2) avoiding the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may beentry of, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have having vacated, lifted, dissolved, reversed or overturned overturned, any decree, Judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of of, or impedes, interferes with or delays, the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; Closing and (D3) obtain effecting the expiration or termination of any approvalwaiting period, consentwhich would otherwise have the effect of preventing, ratification, permission, waiver prohibiting or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the restricting consummation of the MergerClosing or impeding, interfering with or delaying the Closing.
(d) Notwithstanding any other provision of the foregoing or anything else in this AgreementAgreement to the contrary, SJW and the SJW Subsidiaries Purchaser shall not be required to sellto, divest in connection with obtaining the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals or hold separate or otherwise take or commit to the Additional Regulatory Filings and Consents, take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or (including any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth actions listed in Section 7.01(d4.5(c)) or agree to or accept any orders, unless and to the extent such divestiture actions, consents, clearances, non-objections, expiration or other action wouldterminations of any waiting periods, authorizations or approvals or conditions of any Governmental Entity containing terms, conditions, liabilities, obligations, commitments or sanctions that would individually or in the aggregate, have or aggregate reasonably be expected to have a material adverse effect on the Acquired Companies, taken as a whole (a “Burdensome Condition”); provided, that neither Sellers nor Purchaser shall be required to, and neither Sellers nor Purchaser shall, in connection with obtaining the Required Regulatory Material Adverse EffectApprovals or the Additional Regulatory Filings and Consents, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing. In additionWithout the prior written consent of Purchaser (which consent, neither SJW nor in connection with obtaining the ▇▇▇▇▇▇▇▇ Plant Approvals, shall not be unreasonably withheld, conditioned or delayed), Sellers shall not, and shall not permit any of its Affiliates the Acquired Companies, in connection with obtaining any actions or non-actions, clearances, approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity (including the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals and the Additional Regulatory Filings and Consents) in connection with this Agreement or the transactions contemplated herein, offer or agree to any undertaking, term, condition, liability, obligation, commitment or sanction that would reasonably be expected to be material and adverse to Purchaser’s ability to obtain the Required Regulatory Approvals, the ▇▇▇▇▇▇▇▇ Plant Approvals and the Additional Regulatory Filings and Consents on substantially the terms that Purchaser reasonably expects; provided, that the foregoing limitations on Sellers apply solely to actions taken by Sellers and shall be under not in any manner impact the obligations of Purchaser pursuant to the remaining provisions of this Section 4.5, including Purchaser’s obligation to take agree to any action such undertaking, term, condition, liability, obligation, commitment or sanction in connection with the Required Regulatory Approvals and the ▇▇▇▇▇▇▇▇ Plant Approvals to the extent required under this Section 6.03(d) if 4.5, subject in all instances to the FTC or limitation provided in the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation first sentence of the transactions contemplated by this AgreementSection 4.5(d).
(e) Notwithstanding any other provision In furtherance, and not in limitation, of this AgreementSections 4.5(a), CTWS 4.5(b) and the CTWS Subsidiaries 4.5(c), Sellers and Purchaser shall, and shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s cause their respective Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal each other and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.use reasonable best efforts to cause FERC to accept f
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this AgreementTransactions.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW the Company and the SJW Company Board and CTWS Parent and the CTWS Board, as the case may be, Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreement the Transactions and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Transaction Agreements or any other transaction contemplated by this Agreementthe Transactions, take all action reasonably appropriate to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by the applicable Transaction Agreements.
(c) In connection with and without limiting Section 6.03(a), Parent and the Company shall cooperate in good faith to seek to obtain all consents, approvals and waivers required by the terms of any material Contracts with third parties or material Permits in connection with the transactions contemplated hereby.
(d) In connection with and without limiting Section 6.03(a), the Company and Parent shall promptly enter into discussions with the Governmental Entities from whom Consents or nonactions are required to be obtained in connection with the consummation of the Merger and the other transactions contemplated by this Agreement may in order to obtain all such required Consents or nonactions from such Governmental Entities, in each case 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 End Date. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 6.03(f), the Company and Parent shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or approval or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation of, or requirements or undertakings with respect to the conduct by the Company, Parent or any of their respective Subsidiaries of, any portion of the business, properties or assets of the Company, Parent or any of their respective Subsidiaries; provided, however, that neither Parent nor the Company shall be consummated required pursuant to this Section 6.03(d) to commit to or effect any action, prohibition, limitation, requirement or undertaking that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to have a Substantial Detriment. If the actions taken by Parent and the Company pursuant to the immediately preceding sentence do not result in the conditions set forth in Sections 7.01(c) and (d) being satisfied, then, during the term of this Agreement, each of Parent and the Company shall use their reasonable best efforts to initiate or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Transactions or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to block consummation of the Transactions, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 7.01(c) or (d) not to be satisfied.
(e) In connection with and without limiting the generality of the foregoing, each of Parent and the Company shall:
(i) make or cause to be made as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable and in any event no later than 15 Business Days following the date of this Agreement), SJW in consultation and CTWS each shall file cooperation with the United States Federal Trade Commission (other, all filings required under the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms HSR Act relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(iiMerger;
(ii) below, SJW and CTWS each shall use its reasonable best efforts to obtain early termination furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(d);
(iii) give the other reasonable prior notice of any waiting period under such registration, declaration, submission, notice or filing and, to the HSR Act and SJW and CTWS shall each, as promptly as extent reasonably practicable, (A) supply the other with of any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin Section 6.03(d) and in this Section 6.03(e)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analysessuch registration, appearancesdeclaration, presentationssubmission, memorandanotice, briefs, arguments, opinions and proposals made filing or submitted by or on behalf of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.communication;
(iiiiv) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective its reasonable best efforts to contest and resist respond as promptly as reasonably practicable to any such action inquiries or proceeding and to have vacatedrequests received from any Governmental Entity or any other authority enforcing applicable antitrust, liftedcompetition, reversed trade regulation or overturned any decree, Judgment, injunction similar Laws for additional information 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 contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party documentary material in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approvalantitrust, consentcompetition, ratification, permission, waiver of authorization trade regulation or similar matters (including a “second request” under the HSR Act), and not extend any authorization of a Governmental Entity) required to be obtained from waiting period under the HSR Act or enter into any agreement with such Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected authorities not to have a Regulatory Material Adverse Effect. In addition, neither SJW nor consummate any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement., except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(ev) Notwithstanding unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedommeeting, or after engage in any conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(d) and in this Section 6.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, the freedom of action of SJW articulating any regulatory or any of SJW’s Affiliates with respect tocompetitive argument, or its ability responding to retainrequests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, SJW filings and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of communications (and memoranda setting forth the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless substance thereof) between it and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of and their respective Representatives shall cooperate with on the one hand, and any third party in seeking regulatory clearance Governmental Entity or members of any SJW Takeover Proposal Governmental Entity’s staff, on the other hand, with respect to this Agreement and (ii) neither CTWS nor any the Merger, subject to redaction of its Affiliates competitively sensitive information, valuation material or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposalinformation subject to attorney client privilege.
Appears in 1 contract
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall each party hereto will use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and applicable laws and regulations to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Burlington Necessary Consents or ConocoPhillips Necessary Consents, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (collectively, the "Required Approvals") and (ii) taking all reasonable steps as may be necessary to obtain all such Necessary Consents and the Required Approvals. In furtherance and not in limitation of the foregoing, each of ConocoPhillips and Burlington agrees to prepare, as promptly as practicable, and to make (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby (within thirty (30) Business Days), (B) appropriate filings with the European Commission, if required, in accordance with applicable Regulatory Laws at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis, and (C) all other necessary filings with other Governmental Entities relating to the Merger at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis, and, to prepare to supply as promptly as practicable any additional information or documentation that may be requested pursuant to such laws or by such Governmental Entities, and to supply such additional information and documentation at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis and to use reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and the receipt of Required Approvals under such other laws or from such authorities as soon as practicable. In furtherance and not in limitation of the foregoing, Burlington agrees not to extend any waiting period under the HSR Act or enter into any agreement with the FTC or the DOJ not to consummate the transactions contemplated by this Agreement, except with the prior written consent of ConocoPhillips.
(b) Without limiting The parties shall each cooperate and consult with each other in connection with the generality actions referenced in Section 6.4(a) to obtain all Required Approvals. In particular, Burlington shall (i) furnish as promptly as reasonably practicable to ConocoPhillips any information concerning Burlington and its business, properties and personnel as ConocoPhillips may reasonably request, in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, and (ii) permit ConocoPhillips to review in advance, and accept all of Section 6.03(a)ConocoPhillips' reasonable comments in connection with, SJW any proposed written communication between it and any Governmental Entity. In addition, each party shall (i) promptly inform the SJW Board other party of (and CTWS supply to the other party) any communication (or other correspondence or memoranda) received by such party from, or given by such party to, the DOJ, the FTC or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the CTWS Boardtransactions contemplated hereby, as and (ii) consult with the case may beother party in advance, shall use their respective reasonable best efforts to the extent practicable and not prohibited by law, of any meeting or conference with the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC or such other applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings and conferences. In furtherance and not in limitation of the foregoing, Burlington agrees that notwithstanding anything to the contrary in this Agreement, ConocoPhillips will take the lead in all meetings and communications with any Governmental Entity in connection with any Antitrust Laws, including by determining the appropriate timing of any such meeting or communication (including (x) the timing of the submission of any filing with, or response to any request by, a Governmental Entity, and (y) the timing of any action taken pursuant to 6.4(c)) such that the requisite approvals are obtained prior to the Termination Date.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.4(a) and 6.4(b) but subject to Section 6.4(b), Burlington and ConocoPhillips, as applicable, shall take all actions necessary to:
(i) avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, on or before the Termination Date, including without limitation defending through litigation on the merits any claim asserted in any court by any Person; and
(ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Termination Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of ConocoPhillips, Burlington and their respective Subsidiaries and (y) otherwise taking or committing to take actions that after the Closing Date would limit ConocoPhillips or its Subsidiaries' freedom of action reasonably appropriate with respect to, or its or their ability to ensure retain, one or more of the businesses, product lines or assets of ConocoPhillips, Burlington and their respective 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 suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing. ConocoPhillips and, if requested by ConocoPhillips, Burlington shall agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that no limits its freedom of action with respect to, or ConocoPhillips or ConocoPhillips' Subsidiaries' ability to retain, any of the businesses, product lines or assets of ConocoPhillips, Burlington or any of their respective Subsidiaries, provided that any such action is conditioned upon the consummation of the Merger. Burlington agrees and acknowledges that, notwithstanding anything to the contrary in this Section 6.4, in connection with any filing or submission required, action to be taken or commitment to be made by ConocoPhillips, Burlington or any of their respective Subsidiaries to consummate the Merger or other transactions contemplated by this Agreement, neither Burlington nor any of Burlington's Subsidiaries shall, without ConocoPhillips' prior written consent, sell, divest, or dispose of any assets, commit to any sale, divestiture or disposal of businesses, product lines or assets of Burlington and Burlington's Subsidiaries or take any other action or commit to take any action that would limit Burlington's, ConocoPhillips' or any of their respective Subsidiaries' freedom of action with respect to, or their ability to retain any of, their businesses, product lines or assets; provided that the foregoing shall not relieve any party of its obligations under this Agreement.
(d) Each party hereto and its respective Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction transactions contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreementhereby, take all action reasonably appropriate necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting hereby and otherwise to minimize the generality effect of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of such statute or regulation on this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Required Actions. (a) Subject to the terms Buyer and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to take, or cause to be taken, all actionsSellers shall, and doshall cause their applicable Affiliates to, 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 carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective commercially reasonable best efforts to (xi) take promptly make all action reasonably appropriate to ensure filings and notifications with, and obtain all authorizations, consents, orders and approvals of, all Governmental Entities that no takeover statute may be or similar statute or regulation is or becomes applicable to this Agreementbecome necessary for their respective execution and delivery of, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality performance of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreementtheir respective obligations pursuant to, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division consummation of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) belowby, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals an appropriate filing of a notification and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating report form pursuant to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, HSR Act or any of their respective Subsidiaries, from any third party and/or any Governmental Entity other applicable antitrust or noncompetition Laws or regulations with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documentscollectively, certificates“Governmental Approvals”), agreements and instruments reasonably necessary for all filings hereunder); (Bii) give all notices (if any) required to be made and given by such party in connection cooperate with the Merger reasonable requests of each other in promptly seeking to obtain all such Governmental Approvals, and (iii) take all actions as may be necessary to obtain such Governmental Approvals. No party shall take any action that would reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any Governmental Approval (b) Notwithstanding Section 6.8(a), Buyer and Sellers shall take all actions as may be necessary to obtain approval under the HSR Act and to obtain early termination or expiration of the “waiting period” (as defined by the HSR Act and the Rules promulgated thereunder).
(c) The Sellers and Buyer shall, to the extent practicable and without waiver of the attorney client privilege, jointly participate in the defense and settlement of any Action by a Governmental Entity relating to this Agreement, the Share Purchase or the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approvalhereby, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with and neither the Merger Sellers nor Buyer shall settle or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take compromise any such action unless Action without the effectiveness of the action is contingent upon the consummation of the Mergerother’s written consent.
(d) Notwithstanding Buyer and the Sellers shall promptly notify each other of any other provision material communication either of them receives from any Governmental Entity relating to the matters that are the subject of this Agreement. Neither Buyer nor the Sellers shall agree to participate in any meeting with any Governmental Entity relating to the matters that are the subject of this Agreement unless such party consults with the other in advance and, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary permitted by such Governmental Entity, gives the other the opportunity to satisfy attend and participate at such meeting. The 44 parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as such parties may reasonably request in connection with the conditions set forth in Section 7.01(d), unless and foregoing. In no event shall Buyer or the Sellers be obligated to provide the other any portion of its HSR notification filing not customarily furnished to the extent such divestiture or other action would, individually or party in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreementconnection with HSR filings.
(e) Notwithstanding any other provision of this Agreement, CTWS and Buyer shall pay all filing fees required under the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementHSR Act.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Stock Purchase Agreement
Required Actions. (a) Subject to the terms Seller and conditions of this AgreementPurchaser will, SJWand will cause their respective Affiliates to, Merger Sub cooperate with each other and CTWS shall use its respective reasonable best efforts to take(i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond as promptly as practicable to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of Seller and Purchaser will make, or cause to be takenmade, all actions, an appropriate filing of a Notification and do, or cause Report Form pursuant to be done, and assist and cooperate the HSR Act with respect to the other parties in doing, all things necessary, proper or advisable under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file hereby with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event within ten (10) Business Days of executing this Agreement. Purchaser shall be responsible for any filing fees required under the “DOJ”HSR Act.
(b) Notification Purchaser and Report Forms Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein required hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the HSR Act. Without limitation Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Section 6.03(c)(iiSeller and Purchaser shall (and will cause its Affiliates to): (i) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination inform the other Party in advance of any waiting period under such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the HSR Act subject matter, contents, intended agenda and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply other aspects of any of the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
foregoing; (ii) Each consult and cooperate with the other Party, and to take into account the comments of SJW and CTWS shall use reasonable best efforts the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit Representatives of the other Party to prepare and fileparticipate in any such communications, meetings, or cause other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing; provided further, however, Purchaser shall have the principal responsibility, in consultation with the Company, for determining and implementing the strategy for obtaining any necessary clearance, consents, approvals, or waiting period expirations or terminations pursuant to any antitrust, competition or trade regulation Law that may be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with asserted by any Governmental Entity with respect to the Merger and the other transactions contemplated by under this Agreement, including all SJW Agreement and shall do so in a manner reasonably designed to obtain any such antitrust-related Required Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicablepracticable and, in any event prior to the Outside Date. Materials shared by and among the Purchaser, Seller and Company pursuant to this Section 5.5(b) may be redacted (A) supply to remove references concerning the other with any information which reasonably may be required in order to effectuate such filingsvaluation of the Business, (B) supply as necessary to comply with contractual arrangements, (C) as necessary to comply with legal requirements and (D) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any additional information which Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of Purchaser’s covenants and agreements under this Section 5.5, Purchaser shall, and shall cause its Affiliates to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals so as to enable the Closing to occur as promptly as practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) in the case of Purchaser, proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business of Purchaser, its Affiliates or the Company, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (D) otherwise taking or committing to take actions that, after the Closing Date, would limit Purchaser’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, one or more of the businesses, product lines or assets of the Company as may be required by a Governmental Entity of or agreeing to any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject other action in order to applicable Law and the instructions of any Governmental Entity, keep effect each other apprised of the status of matters relating to following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the completion of Outside Date, (2) avoiding the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may beentry of, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have having vacated, lifted, dissolved, reversed or overturned any decree, Judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing, and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Merger Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with any Governmental Entity or intervenor, or the other transactions contemplated hereby.
(iv) Each filing with any Governmental Entity or the publication of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization any document containing any commitments (including any authorization preliminary offer relating to such settlement, filing or publication) regarding a Required Regulatory Approval of any Party or their Affiliates must be approved by Purchaser and, to the extent involving a Governmental Entity) required to be obtained from Governmental Entities pursuant to concession or commitment made by any applicable Law by such party in connection with the Merger or any member of the other transactions contemplated by this AgreementSeller Group, including (excluding the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalCompany), consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the MergerSeller.
(d) Notwithstanding any other provision of the foregoing or anything else in this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates Agreement to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreementcontrary, (i) neither SJW Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller, any of its Affiliates or any of their respective Representatives shall cooperate businesses, other than terms, conditions or limitations on or with any third party in seeking regulatory clearance respect to the Company or the Business that are conditional upon the occurrence of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposalthe Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Chesapeake Utilities Corp)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW Qwest and the SJW Qwest Board and CTWS CenturyLink and the CTWS Board, as the case may be, CenturyLink Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), Qwest and CenturyLink shall promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity of any jurisdiction Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and which the parties may reasonably deem appropriate, and (C) subject to applicable Law the limitations set forth in Section 6.03(e), Qwest and CenturyLink shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or approval or otherwise, the instructions of any Governmental Entitysale, keep each other apprised of divestiture or disposition of, or prohibition or limitation on the status of matters relating ownership or operation of, or requirements or undertakings with respect to the completion of the transactions contemplated therebyconduct by Qwest, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, CenturyLink or any of their respective Subsidiaries, from of any third party and/or portion of the business, properties or assets of Qwest, CenturyLink or any Governmental Entity with respect of their respective Subsidiaries; provided, however, that neither CenturyLink nor Qwest shall be required pursuant to such transactionsthis Section 6.03(c) to commit to or effect any action that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to result in a Substantial Detriment. No party If the actions taken by CenturyLink and Qwest pursuant to the immediately preceding sentence do not result in the conditions set forth in Section 7.01(d), (e) and (f) being satisfied, then, during the term of this Agreement, each of CenturyLink and Qwest shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect jointly (to any such filings, investigation or other inquiry without using the extent practicable) use their reasonable best efforts to give initiate and/or participate in any proceedings, whether judicial or administrative, in order to (to the extent feasible and appropriatei) the other party prior notice of the meeting oppose or conversation and, unless prohibited defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, and/or (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contractsappeal if necessary, offering customary feesany Legal Restraint resulting from any suit, discounts and action or other incentives to such parties on commercially reasonable terms and paying legal proceeding that would cause any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions condition set forth in Section 7.01(d), unless (e) or (f) not to be satisfied; provided that CenturyLink and Qwest shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the extent foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of CenturyLink and Qwest shall:
(i) make or cause to be made, in consultation and cooperation with the other and within twenty-one days after the date of this Agreement (or such divestiture other time as the parties mutually agree), (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) (A) make or cause to be made, in consultation and cooperation with the other action wouldand as promptly as practicable after the date of this Agreement, all applications required to be filed with the FCC (the “FCC Applications”) and any State Regulators (the “PSC Applications”) to effect the transfer of control of the Qwest Licenses and/or CenturyLink Licenses, as necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, and use its reasonable best efforts to respond in consultation and cooperation with the other and as promptly as practicable to any additional requests for information received from the FCC or any State Regulator by any party to an FCC Application or PSC Application and (B) use its reasonable best efforts to cure not later than the Effective Time any violations or defaults under any FCC Rules or rules of any State Regulator, except for such violations or defaults that, individually or in the aggregate, have or would not reasonably be expected to have a Regulatory Material Adverse Effect. In additionSubstantial Detriment;
(iii) use its reasonable best efforts to furnish to the other all assistance, neither SJW nor cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c);
(iv) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of its Affiliates shall be under any obligation the actions referred to take any action under in Section 6.03(c) and in this Section 6.03(d)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;
(v) if use its reasonable best efforts to respond as promptly as reasonably practicable under the FTC circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the DOJ authorizes its staff HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to seek a preliminary injunction or restraining order to enjoin consummation consummate any of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this Section 6.03(d)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, except that any materials concerning valuation of the other party may be redacted or withheld.
(e) Notwithstanding any other provision anything else contained herein but subject to the proviso of the second sentence of Section 6.03(c), the provisions of this AgreementSection 6.03 shall not be construed to require Qwest, CTWS and the CTWS CenturyLink, or their respective Subsidiaries shall be required to selloffer, divest or hold separate or otherwise take or take, commit to take or accept any action that limits its freedomaction, restrictions or limitations (“Actions”) of or on Qwest, CenturyLink, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s their respective Subsidiaries, or any to permit such Actions without the prior written consent of the respective businessesother party, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent if such divestiture or other action wouldActions, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Qwest Communications International Inc)
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and necessary to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this AgreementAgreement in accordance with the terms hereof; provided, however, that nothing in this Section 6.3 shall prohibit either party from taking any action expressly contemplated by Section 5.5.
(b) Without In connection with and without limiting the generality of Section 6.03(a6.3(a), SJW United and the SJW United Board and CTWS Continental and the CTWS Board, as the case may be, Continental Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate necessary to ensure that no takeover statute Takeover Statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any takeover statute Takeover Statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As 6.3(a), promptly as reasonably practicable following the date execution and delivery by the parties of this AgreementAgreement United and Continental shall provide all necessary notices, SJW applications and CTWS each shall file with requests to, and enter into discussions with, the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this AgreementAgreement in order to obtain all such required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be asserted by such Governmental Entities, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shallin each case with respect to the Merger, so as promptly to enable the Closing to occur as soon as reasonably practicable. To the extent necessary in order to accomplish the foregoing, United and Continental shall jointly propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on, (A) supply the other with ownership or operation by United, Continental or any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of their respective Subsidiaries of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised portion of the status business, properties or assets of matters relating to the completion of the transactions contemplated therebyUnited, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, Continental or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect (B) the ability of United to such transactions. No party shall independently participate in any meetingacquire or hold, or engage exercise full right of ownership of, any shares of the capital stock of the United Subsidiaries or Continental or the Continental Subsidiaries, including the right to vote, or (C) United or any of its Subsidiaries effectively controlling the business or operations of United and the United Subsidiaries or Continental and the Continental Subsidiaries; provided, however, that neither Continental nor United shall be required pursuant to this Section 6.3(c) to propose, commit to or effect any action that is not conditioned upon the consummation of the Merger. If the actions taken by Continental and United pursuant to the immediately preceding sentence do not result in any substantive conversationthe conditions set forth in Section 7.1(d) and (f) being satisfied, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give then each of Continental and United shall jointly (to the extent feasible and appropriatepracticable) the other party prior notice of the meeting initiate and/or participate in any proceedings, whether judicial or conversation andadministrative, unless prohibited in order to (i) oppose or defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, Agreement and (Cii) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into appeal if necessary, any Injunction resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 7.1(d) or (f) not to be satisfied, provided that Continental and negotiating commercially reasonable definitive agreements United shall cooperate with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred one another in connection therewith; providedwith, howeverand shall jointly control, that SJW and CTWS are not required all proceedings related to take any such action unless the effectiveness of the action is contingent upon the consummation of the Mergerforegoing.
(d) Notwithstanding In connection with and without limiting the generality of the foregoing, each of Continental and United shall:
(i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement (but in any other provision event, with respect to clause (A) below, within five Business Days following the date of this Agreement, SJW and with respect to clause (B) below, at a time necessary to ensure that the SJW Subsidiaries shall be required EU Extension Date occurs prior to sellthe Latest Possible End Date), divest or hold separate or otherwise take or commit (A) an appropriate filing of a Notification and Report Form pursuant to take any action that limits its freedom, or after the HSR Act relating to the Merger, (B) all appropriate filings required pursuant to European Community Council Regulation No. 139/2004 (the freedom of action of SJW or any of SJW’s Affiliates with respect to“EU Merger Regulation”), or its ability to retainand (C) all other necessary registrations, SJW declarations, notices and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates filings relating to the extent necessary Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) use its reasonable best efforts to satisfy furnish to the conditions other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 7.01(d6.3(c);
(iii) give the other reasonable prior notice of any such registration, unless and declaration, notice or filing and, to the extent such divestiture or other action wouldreasonably practicable, individually or in of any communication with any Governmental Entity regarding the aggregate, have or reasonably be expected Merger (including with respect to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of the actions referred to in Section 6.3(c)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with, any such registration, declaration, notice, filing or communication;
(iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters;
(v) without limiting the generality of Section 6.3(d)(iv), (A) use its Affiliates shall be reasonable best efforts to achieve Substantial Compliance as promptly as practicable with any request for additional information or documentary material issued by a Governmental Entity under any obligation to take any action under this Section 6.03(d15 U.S.C. Sect. 18a(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of and in conjunction with the transactions contemplated by this Agreement.
Agreement (ea “Second Request”), (B) Notwithstanding certify Substantial Compliance with any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or Second Request as promptly as practicable after the Mergerdate of such Second Request, the freedom of action of SJW or any of SJW’s Affiliates with respect tobut in no event later than September 30, or its ability to retain2010, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent (C) take all actions necessary to satisfy the conditions set forth in Section 7.01(d)assert, unless defend and to the extent support its certification of Substantial Compliance with such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.Second Request and
Appears in 1 contract
Sources: Merger Agreement
Required Actions. (a) Subject to Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their respective commercially reasonable efforts to take, and cause their respective Affiliates to take, all actions that are necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Transactions, including using commercially reasonable efforts to accomplish the following: (i) obtain all required consents, permits, waivers, approvals, clearances and authorizations orders of, or non-actions by (collectively, “Consents”) from, or participation in other discussions or negotiations with, third parties, including as required under any DXL Material Contract or FBB Material Contract, and (ii) execute and deliver any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement; provided, however, that neither the DXL, FBB nor any of their respective Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).
(b) Without limiting the generality of Section 6.04(a), each of DXL and FBB shall use commercially reasonable efforts to (i) take all action necessary to ensure that no Takeover Statute or similar statute or regulation is or becomes applicable to this Agreement or any Transaction and (ii) if any Takeover Statute or similar statute or regulation becomes applicable to this Agreement or any Transaction, take all action necessary to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.04(a), each of DXL and FBB shall use commercially reasonable efforts to, and, to the extent any of DXL’s Affiliates are required to under applicable Laws, DXL shall use commercially reasonable efforts to cause such Affiliates to, (i) provide all necessary notices, reports, registrations, submissions of information, applications and other filings, and obtain as promptly as practicable all Consents from any Governmental Entity and any other Person that are required to be effected or obtained by DXL, Merger Sub or FBB, or any of their respective Subsidiaries, in connection with the consummation of the Transactions, and take all necessary actions to obtain any such Consents from any Governmental Entity that are required to be so effected or obtained, (ii) to prosecute all such filings and Consents with all appropriate diligence, (iii) furnish all information required to be furnished in connection with the Consents of or filings with any Governmental Entity, and promptly cooperate with and furnish information in connection with any such requirements imposed upon either of them or any of their respective Subsidiaries in connection with this Agreement and the Transactions, (iv) execute and deliver any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement, SJW(v) facilitate obtaining any final order, Merger Sub writ, judgment or decree approving the Transactions consistent with this Agreement, and CTWS shall use its respective reasonable best efforts to (vi) 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 necessary to avoid or advisable under applicable Laws eliminate each and every legal impediment asserted by any Governmental Entity so as to carry out enable the intent and purposes of this Agreement and parties hereto to consummate and make effective, as soon promptly as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting Transactions in accordance with the generality of Section 6.03(a)terms hereof; provided, SJW and that notwithstanding anything to the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to contrary in this Agreement, the Merger or any other transaction contemplated by nothing in this Agreement and (y) if any takeover statute shall require DXL or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, as the case may be, FBB or any of their respective SubsidiariesAffiliates to (or permit DXL and its Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meetingon the one hand, or engage in any substantive conversationFBB and its Affiliates, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) on the other party prior notice hand, without the consent of the meeting other of DXL or conversation andFBB, unless prohibited by such Governmental Entityas applicable, a reasonable opportunity to attend agree or participate. accept), any action or remedy that would be material and adverse to DXL and its Subsidiaries (including FBB) following the Merger.
(d) Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult DXL and cooperate with one another and permit FBB shall each advise the other party or its counsel to review promptly, but in advanceany event within two (2) Business Days, of (and consider in good faith the views of shall promptly furnish the other in connection with, with copies of) any proposed written notice or other communication received by such party or any of its Affiliates from any Governmental Entity regarding any of the Transactions, and of any understandings, undertakings or agreements (oral or written) such party proposes to make or enter into with any Governmental Entity in connection with any analysesthe Transactions, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf each party shall generally keep the other apprised of any party in connection with proceedings under or the status of matters relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice completion of the commencement Transactions. Subject to applicable Law, neither DXL nor FBB shall, and each shall not permit any of its Subsidiaries or threat of commencement of Representatives to, participate in any legal proceeding by substantive or before material meeting, telephone conversation or other communication with any Governmental Entity in respect of any filings, investigation or other inquiry or proceeding with respect to the Merger Transactions, unless, to the extent reasonably practicable under the circumstances, 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 in such meeting, conversation or other communication. Each of DXL and FBB shall (i) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement or any of the other transactions contemplated Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal Entity and (ii) neither CTWS nor any subject to applicable Law, furnish the other party with copies of its Affiliates or any of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and their respective Representatives shall cooperate with Subsidiaries and Representatives, on the one hand, and any third party in seeking regulatory clearance Governmental Entity or members of any CTWS Takeover ProposalGovernmental Entity’s staff, on the other hand, with respect to this Agreement and the Transactions.
Appears in 1 contract
Required Actions. (a) Subject to the terms The Company and conditions of this AgreementParent shall, SJWas promptly as possible, Merger Sub and CTWS shall use its respective reasonable best efforts to take(i) make, or cause to be takenmade, all actionsfilings and submissions required under any applicable Law (provided, that neither the Company, on the one hand, nor Parent, on the other hand, shall be in breach of the foregoing covenant if such party’s failure to timely file is a result of the other party’s failure to provide the requisite materials and signatures or otherwise take the requisite steps necessary for such filing), and do(ii) to thereafter use commercially reasonable efforts to obtain, or cause to be doneobtained, all consents, authorizations, orders and assist and cooperate approvals from all Governmental Authorities whether federal, state, local, or foreign, which may be required in connection with the other parties in doing, all things necessary, proper or advisable consummation of the transactions contemplated under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this AgreementTransaction Documents. The Company and its Subsidiaries and Representatives shall cooperate with Parent and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of Section 6.03(a), SJW The Company and the SJW Board and CTWS and the CTWS Board, as the case may be, Parent shall use their respective commercially reasonable best efforts to (x) take give all action reasonably appropriate to ensure notices to, and obtain all consents from, all third parties that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, are expressly set forth in Section 5.04 of the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this AgreementDisclosure Schedules.
(c) Without limiting the generality of Section 6.03(a):the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties hereto shall use commercially reasonable efforts to:
(i) As respond promptly as reasonably practicable following the date of this Agreement, SJW to any inquiries and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply furnish any additional information which reasonably may be required requested by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity Authority regarding antitrust or other matters with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.Transaction Document;
(dii) Notwithstanding resolve any other provision objections that may be asserted by the applicable Governmental Authority as promptly as practicable and avoid the imposition of this Agreement, SJW and any order or the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take taking of any action that limits its freedomwould restrain, alter or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.Agreement or any Transaction Document; and
(eiii) Notwithstanding in the event any other provision of this Agreement, CTWS and Governmental Order adversely affecting the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates parties to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of consummate the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates Agreement or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates Transaction Document has been issued, to have such Governmental Order vacated or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposallifted.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Required Actions. (a) Subject to Both of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS Parties hereto shall use its respective their reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and applicable Law to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this AgreementAgreement as soon as practicable after the Effective Date, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and obtaining as promptly as practicable all consents, approvals and authorizations that are required to be obtained under any federal, state, local or foreign Law or regulation, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Third Party and/or any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the “Required Approvals”) and (ii) taking all reasonable steps as may be necessary to obtain all such necessary consents and the Required Approvals. In furtherance and not in limitation of the foregoing, each of the Parties agrees to (A) prepare, as promptly as practicable, and to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within fifteen (15) Business Days and (B) prepare to supply as promptly as practicable any additional information or documentation that may be requested pursuant to such Laws or by such Governmental Entities, and to supply such additional information and documentation and to use reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and the receipt of Required Approvals, or expiration of waiting periods, under such other Laws or from such authorities as soon as practicable.
(b) Without limiting The Parties shall each cooperate and consult with each other in connection with the generality actions referenced in Section 5.2(a) to obtain all Required Approvals. In particular, the Parties shall (i) consult with each other prior to taking any substantive position in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, and (ii) permit each other to review and discuss in advance, and consider in good faith the view of Section 6.03(a)the other in connection with, SJW any proposed written communication between either Party and the SJW Board and CTWS and the CTWS Boardany Governmental Entity. In addition, as the case may be, each Party shall use their respective reasonable best efforts to (x) take all action reasonably appropriate promptly inform the other Party of (and, if written, supply to ensure that no takeover statute the other Party) any communication received by such Party from, or similar statute or regulation is or becomes applicable to this Agreementgiven by such Party to, the Merger or any other transaction contemplated by this Agreement and United States Department of Justice (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreementthe “DOJ”), the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) or any other Governmental Entity and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating any communication received or given in connection with any proceeding by a private party, in each case to the transactions contemplated herein required extent not prohibited by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of regarding any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyhereby, including promptly furnishing and (y) consult with the other Party in advance, to the extent practicable and not prohibited by Law, of any meeting or conference with copies of notices or other communications received by the SJW or CTWSDOJ, as the case may be, FTC or any of their respective Subsidiaries, from any third party and/or any other Governmental Entity or, in connection with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversationproceeding by a private party, with any Governmental Entity in respect to any such filingsother Person, investigation or other inquiry without using reasonable best efforts to give (and to the extent feasible and appropriate) not prohibited by the DOJ, the FTC or such other applicable Governmental Entity or other Person, give the other party prior notice of Party the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participateand participate in such meetings and conferences. Subject to applicable Law In furtherance and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review not in advance, and consider in good faith the views limitation of the other foregoing, Seller agrees that notwithstanding anything to the contrary in connection withthis Agreement, any proposed written communication by such party to Purchaser shall control and take the lead in all meetings and communications with any Governmental Entity in connection with any analysesRequired Approvals, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating such that the requisite approvals are obtained prior to the HSR ActOutside Date or the Extended Outside Date, other antitrust Laws or any applicable state Laws if applicable, in connection accordance with the Merger terms and the other transactions contemplated by conditions of this Agreement.
(iiic) Each of SJW and CTWS Party shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threatnot, and (C) cooperate in all material respects with shall cause each other and shall use of their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacatedAffiliates not to, 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 or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, which is intended to or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or which would reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor adversely affect the ability of any of the Parties hereto from obtaining (or cause delay in obtaining) any Required Approvals, from performing its Affiliates shall be under any obligation to take any action covenants and agreements under this Section 6.03(d) if the FTC Agreement, or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of from consummating the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Required Actions. (a) Subject During the period between the date hereof and the earlier to the terms occur of (x) Closing and conditions (y) termination of this AgreementAgreement (the “Interim Period”), SJWPurchaser, Merger Sub Seller and CTWS Parent shall use its respective reasonable best efforts to 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 any applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, effective in an expeditious manner the Merger Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement and (ii) taking such other actions necessary to obtain (and cooperating with each other in obtaining) any notice, consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or otherwise become applicable to the transactions contemplated by this Agreement.
(b) Without limiting During the generality of Section 6.03(a)Interim Period, SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required extent not prohibited by applicable Law, Purchaser, Seller and Parent shall each keep the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated therebyby this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, including during the Interim Period, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly furnishing consult with the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, or party to provide any of their respective Subsidiaries, from any third party and/or any Governmental Entity necessary information with respect to all filings made by such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in respect connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to any such filingsthe Confidentiality Agreement and Section 6.2, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) not prohibited by applicable Law, during the Interim Period, each party to this Agreement shall as promptly as practicable inform the other party prior notice to this Agreement, and if in writing and to the extent reasonably practicable (taking into consideration any timing requirements or filing deadlines), furnish the other party with copies of (or, in the meeting or conversation andcase of oral communications, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and advise the instructions of other party of) any material communication from any Governmental EntityEntity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the parties will consult and cooperate with one another Sale or the other transactions contemplated by this Agreement, and permit the other party or its counsel to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written communication by or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. During the Interim Period, if any party to this Agreement or any Representative of such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made receives a request for additional information or submitted by or on behalf of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before documentary material from any Governmental Entity with respect to the Merger Sale or any of the other transactions contemplated by this Agreement, (B) keep then such party will make, or cause to be made, as promptly as reasonably practicable and, if reasonably practicable, after consultation with the other party informed as to this Agreement, an appropriate response in compliance with such request. During the Interim Period, Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting (including telephone conversation, video conference, or other discussion) with any Governmental Entity in connection with obtaining any Regulatory Approvals in connection with this Agreement or the Sale, unless, to the status of extent not prohibited by the applicable Governmental Entity, it consults with the other party reasonably in advance and, 50 to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any such legal proceeding competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Seller or threatby Seller to Purchaser pursuant to this Section 6.3, and (C) cooperate in all material respects with each other the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product.
(c) During the Interim Period, Purchaser shall use their respective its reasonable best efforts to contest and resist any resolve such action or proceeding and to have vacatedobjections, liftedif any, 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 or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested asserted by any Governmental Entity with respect to the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger Sale and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be Agreement under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementRegulatory Laws.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (New Fortress Energy Inc.)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable advisable following the date of this Agreement, SJW and CTWS each :
(i) the Parties shall file with the United States Federal Trade Commission (the “FTC”FTC ) and the Antitrust Division of the United States Department of Justice (the “DOJ”DOJ ) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii7.2(b) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall eachParty shall, as promptly as reasonably practicable, (A) supply the other Parties with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.; and
(ii) Each the Parties shall file a request for an advance ruling certificate under section 102 of SJW the Competition Act (an Advance Ruling Certificate ) or, in the alternative, confirmation that the Commissioner of Competition appointed under the Competition Act (including any person designated by the Commissioner on his behalf) (the Commissioner ) does not, at that time, intend to make an application under section 92 of the Competition Act (a No Action Letter ) along with a waiver of the notification obligation under section 113(c) of the Competition Act. If mutually agreed between the Parties, each Party will prepare and CTWS submit, within ten (10) Business Days of such agreement, the notification and information required under subsection 114(1) of the Competition Act. The Parties shall use reasonable best efforts to obtain the Competition Act Approval in respect of the Business Combination and will supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested by the Commissioner to obtain the Competition Act Approval, as soon as reasonably practicable and they will respond to any requests for additional information made by the Commissioner in order to cause the waiting periods under the Competition Act to terminate, expire or be waived, at the earliest possible date. Without limiting the foregoing, each Party shall, as promptly as reasonably practicable, (A) supply the other Parties with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the Commissioner.
(b) The Parties shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this AgreementAgreement but in no event more than sixty (60) Business Days or by such other time as is mutually agreed to by Corix and IIF Subway, (i) all filings, submissions and registrations required or advisable to be made to the PURA and the MPUCCFIUS, and to all applicable Governmental Entities, (ii) in the case of the SWWC Parties, a notification under section 12 of the ICA and (iii) all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger Business Combination and the other transactions contemplated by this Agreement, including all SJW Corix Regulatory Approvals and all CTWS SWWC Regulatory ApprovalsApprovals except for any filings in connection with the HSR Act and the Competition Act which shall be prepared and filed in accordance with Section 7.2(a). Each of CTWS and SJW Party shall, as promptly as reasonably practicable, ,
(A) supply the other Parties with any information which reasonably may be required in order to effectuate such filings, except, with respect to the CFIUS process, any exhibits to such communications providing the personal identifying information required by 31 C.F.R. §800.502(c)(6)(vi), information otherwise requested by CFIUS to remain confidential or information reasonably determined by the Parties to be business confidential information, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties Parties may reasonably deem appropriate, appropriate and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, as the case may be, a Party or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party Other than with respect to the Excluded Business Carveout (solely to the extent any such meeting or substantive conversation is reasonably anticipated to be wholly unrelated to the SWWC Parties, the Corix Water Business and the Business Combination), no Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party Parties prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties Parties will consult and cooperate with one another and permit the other party Party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written or oral communication by such party Party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party Party in connection with proceedings under or relating to the HSR Act, the Competition Act, other antitrust Laws Laws, Investment Canada, DPA or any applicable state Laws in connection with the Merger Business Combination and the other transactions contemplated by this Agreement (other than with respect to the Excluded Business Carveout (solely to the extent any such written or oral communication is wholly unrelated to the SWWC Parties, the Corix Water Business and the Business Combination)).
(c) The Corix Parties and the SWWC Parties each shall, and shall cause their Subsidiaries to, (i) use reasonable best efforts to obtain, and to maintain in full force and effect once obtained, any approval, consent, ratification, permission, waiver or authorization required to be obtained from any Governmental Entity with respect to the Business Combination and the other transactions contemplated by this Agreement, including all Corix Regulatory Approvals and all SWWC Regulatory Approvals, prior to the Closing, and (ii) reasonably cooperate with the other in connection therewith. Notwithstanding anything contained in this Agreement (including the immediately preceding sentence and the obligations set forth in Sections 7.2(a) and 7.2(b)),
(i) none of the Corix Parties nor any of their respective Affiliates shall be required to, and none of Corix nor any of the Contributed Corix Entities shall be permitted to without IIF Subway s prior written approval, in connection with obtaining any Corix Regulatory Approvals, agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) as a condition to obtaining the Corix Regulatory Approvals that would, individually or in the aggregate, have or reasonably be expected to have a Corix Burdensome Effect and
(ii) neither the SWWC Parties nor any of their respective Subsidiaries shall be required to, and neither the SWWC Parties nor any of their respective Subsidiaries shall be permitted to without Corix s prior written approval, in connection with obtaining any SWWC Regulatory Approvals, agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) as a condition to obtaining the SWWC Regulatory Approvals that would, individually or in the aggregate, have or reasonably be expected to have an SWWC Burdensome Effect. Nothing contained in this Agreement (including the obligations set forth in the first sentence of this Section 7.2(c) and Sections 7.2(a) and 7.2(b)) shall require (x) the Corix Parties or any of their respective Affiliates to agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) in connection with obtaining the Corix Regulatory Approvals to take any action or agree to any commitment that is not conditioned on the Closing or (y) the SWWC Parties or any of their respective Subsidiaries to agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) in connection with obtaining the SWWC Regulatory Approvals to take any action or agree to any commitment that is not conditioned on the Closing.
(iiid) Each of SJW The Corix Parties and CTWS the SWWC Parties shall each (Ai) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger Business Combination or any of the other transactions contemplated by this Agreement, (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (Ciii) cooperate in all material respects with each other with respect to any such action or proceeding. Notwithstanding anything to the contrary contained in this Agreement (including the obligations set forth under this Section 7.2), the Parties acknowledge and agree that absent its prior written consent, neither the Corix Parties nor the SWWC Parties shall have any obligation to initiate or defend any such action or proceeding, whether judicial or administrative, challenging the Business Combination or any of the other transactions contemplated by this Agreement, including any obligation to seek to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed.
(e) The Corix Parties and the SWWC Parties each shall, and shall cause their Subsidiaries to, (i) use their respective reasonable best efforts to contest and resist any such action or proceeding obtain, and to have vacatedmaintain in full force and effect once obtained, liftedany approval, reversed consent, ratification, permission, waiver or overturned authorization required to be obtained from any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation party to any Corix Water Material Contract identified on Section 7.2(e)(i) of the Merger Corix Disclosure Letter or SWWC Material Contract identified on Section 7.2(e)(ii) of the other transactions contemplated hereby.
SWWC Disclosure Letter (ivcollectively, the Required Third-Party Consents ) Each of SJW prior to the Closing, and CTWS shall: (Aii) reasonably cooperate with the other partyin connection therewith; provided, however, that the Corix Parties and the SWWC Parties (and each of their respective Subsidiaries) shall not be required to (x) take an action unless the effectiveness of such action is contingent upon the consummation of the Business Combination or (y) make any payments or incur any Loss to obtain any consents of third parties contemplated by this Section 7.2(e). Unless prohibited by Law, each Party shall promptly notify the other of any notice or other communication from any Person alleging that such Person s approval, authorization, consent or Permit is or may be required in connection with the Business Combination.
(f) The Corix Parties and the SWWC Parties shall each reasonably cooperate with the other, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Transaction Agreement
Required Actions. (a) Subject to Upon the terms and subject to the conditions set forth in this Agreement and the Transaction Documents, each of this Agreement, SJW, Merger Sub and CTWS shall the parties hereto agrees to use its respective commercially reasonable best efforts to 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 under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably in the most expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by this AgreementAgreement and the Transaction Documents.
(b) Without In connection with and without limiting the generality of Section 6.03(a5.06(a), SJW promptly following the execution and delivery by the parties of this Agreement, the parties shall (i) make all necessary registrations, declarations and filings with Governmental Entities that are required (including the filing of a Notification and Report Form under the HSR Act as soon as practicable but in any event not later than 10 Business Days following the date hereof) in connection with the consummation of the Acquisition and the SJW Board and CTWS other transactions contemplated by this Agreement and the CTWS BoardTransaction Documents and (ii) take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities or private parties in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Transaction Documents and in order to eliminate each other impediment that may be asserted or obtained by such Governmental Entities or private parties, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Transaction Documents, in each case so as to enable the case may beClosing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.06, neither Jupiter Parent nor any of its affiliates shall use their respective reasonable best efforts be required to offer or agree to (xA) dispose of, hold separate or limit its operation of any portion of the Business or of its other businesses, assets or properties, (B) limit its ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its other businesses, assets or properties or (C) limit its ability to effectively control the Business or any of its other businesses, assets or properties; provided that nothing in this Section 5.06(b) shall limit the obligations of Jupiter Parent or any of its affiliates following the Closing under clause 8.2 of the Shareholders’ Agreement.
(c) Lucky Parent and each Seller shall (i) take all action reasonably appropriate necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, any of the Merger Transaction Documents or any other transaction of the transactions contemplated by this Agreement or the Transaction Documents and (yii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, any of the Merger Transaction Documents or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that of the Merger and the other transactions contemplated by this Agreement or the Transaction Documents, take all action necessary to ensure that the transactions contemplated by this Agreement and the Transaction Documents may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement and the Transaction Documents and otherwise to minimize the effect of such statute or regulation on this Agreement, any of the Transaction Documents and the transactions contemplated hereby and thereby.
(cd) Without In connection with and without limiting Section 5.06(a), prior to the generality Closing and, to the extent Jupiter Parent and the Company waive Section 6.02(c), for a period of Section 6.03(a):12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense) to obtain, and to cooperate in obtaining, all consents from third parties and Governmental Entities necessary or appropriate to permit the transfer of the Acquired Assets to, and the assumption of the Assumed Liabilities by, the Company; provided, however, 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 filing or application fees).
(ie) As promptly as reasonably practicable Promptly, but in any event not more than two Business Days following the date execution and delivery by the parties of this Agreement, SJW (i) the Company, Elan Pharma International Limited and CTWS each Lucky Collaboration Subsidiary shall file with provide to Wyeth the United States Federal Trade Commission (the “FTC”) and the Antitrust Division written notice contemplated by Section 13.7.1 of the United States Department of Justice (Collaboration Agreement, in the “DOJ”) Notification forms attached hereto as Exhibits H-1 and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall eachH-2, as promptly as reasonably practicableapplicable, (A) supply the other with any information which may be required in order to effectuate such filings and (Bii) supply any additional information which reasonably may be required the Company and Lucky Collaboration Subsidiary shall provide to Wyeth the written confirmation contemplated by Section 13.7.3 of the FTC or Collaboration Agreement, in the DOJforms attached hereto as Exhibits I-1 and I-2, as applicable.
(f) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.06 shall require Jupiter Parent or the Company to (i) consent to any action or omission by Lucky Parent or any Seller that would be inconsistent with Section 5.01 absent such consent or (ii) Each of SJW and CTWS shall use reasonable best efforts agree to prepare and file, amend or cause to be prepared and filed, as promptly as reasonably practicable after the date waive any provision of this Agreement, all filings, submissions and registrations required to be made Agreement or any Transaction Document. Notwithstanding anything in this Agreement to the PURA and contrary, nothing in this Section 5.06 shall require Lucky Parent or any Seller to (i) consent to any action or omission by Jupiter Parent or the MPUC, and all other applications, notices, registrations, filings, reports and other documents required Company that would be inconsistent with Section 5.02 absent such consent or (ii) agree to be filed with amend or waive any Governmental Entity with respect to provision of this Agreement or any Transaction Document.
(g) To the Merger and the other transactions contemplated extent permitted by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Applicable Law and the instructions of any Governmental EntityCollaboration Agreement, 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 the SJW or CTWS, 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. No party parties hereto shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using use its commercially reasonable best efforts to give (to the extent feasible and appropriatei) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate in all respects with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the each other in connection withwith any required action under Section 5.06(b), including any proposed written communication by such party to filing or submission with any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger Acquisition or any of the other transactions contemplated by this AgreementAgreement and the Transaction Documents (including, (B) keep to the extent permitted by Applicable Law, providing copies of all such documents to the other party informed as parties prior to the status of any making such legal proceeding filing or threat, submission and (C) cooperate in considering all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation comments of the Merger or the other transactions contemplated hereby.
(ivparties suggested in connection therewith) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with any suit, action, proceeding, investigation or other inquiry by or before any Governmental Entity or private party relating to the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger Acquisition or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals Agreement and the CTWS Regulatory Approvals; Transaction Documents, and (Dii) obtain keep the other parties informed in all material respects and on a reasonably timely basis of any approvalmaterial communication (including meetings, consenttelephonic conferences, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(ivpresentations and written correspondence) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including received by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedomparty from, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect given by such party to, any Governmental Entity or its ability private party relating to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, the Acquisition or any of the respective businessesother transactions contemplated by this Agreement and the Transaction Documents. Lucky Parent and the Sellers agree not to participate in any scheduled meeting or substantive discussion, product lines either in person or assets of SJWby telephone, CTWS or with any of their respective Subsidiaries or Affiliates Governmental Entity in connection with the proposed transactions unless they consult with Jupiter Parent and the Company in advance and, to the extent necessary not prohibited by such Governmental Entity, gives Jupiter Parent and the Company the opportunity to satisfy attend and participate. Each of the conditions set forth in Section 7.01(d), unless and parties hereto agrees not to extend or restart any waiting period under the extent such divestiture HSR Act or any other action would, individually Antitrust Laws or in the aggregate, have or reasonably be expected enter into any agreement with a Governmental Entity not to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
(eh) Notwithstanding any Prior to the Closing, each of the parties hereto agrees to negotiate in good faith with the other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required parties hereto in order to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedomenter into, or after have a subsidiary enter into, a lease agreement, containing fair market terms and conditions, relating to the Mergerfacilities set forth on Schedule 5.06(h) of the Seller Disclosure Letter (such facilities, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d“Leased Facilities”), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Required Actions. (a) Subject Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of Seller and Purchaser will make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby - 37 - with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event by June 4, 2018.
(b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this AgreementAgreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, SJWacting reasonably and in good faith, Merger Sub will coordinate, and CTWS Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section 5.5, each of Purchaser and Seller shall, and shall cause their respective Affiliates to use its respective reasonable best efforts to take, or cause to be taken, any and all actions, steps and doto make, or cause to be donemade, any and assist all undertakings necessary to avoid or eliminate each and cooperate every impediment asserted by any Governmental Entity in connection with obtaining the other parties in doingRequired Regulatory Approvals, all things necessaryincluding avoiding or eliminating any Purchaser Burdensome Condition, proper or advisable under applicable Laws so as to carry out enable the intent and purposes of this Agreement and Closing to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated occur as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, including
(A) supply the other with any information which may be required in order agreeing to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and fileconditions imposed by, or cause to be prepared and filedtaking any action required by, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filingsEntity, (B) supply defending through litigation on the merits, including appeals, any additional information Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition, and proposing alternative conditions upon which reasonably the Required Regulatory Approvals would be provided, (D) in the case of Purchaser, proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business of Purchaser or its Affiliates or of the Company, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to take any other action as may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject in order to applicable Law and the instructions of any Governmental Entity, keep effect each other apprised of the status of matters relating to following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the completion of Outside Date, (2) avoiding the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may beentry of, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have having vacated, lifted, dissolved, reversed or overturned any decree, Judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Merger Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with any Governmental Entity or intervenor , or the other transactions contemplated hereby.
(iv) Each filing with any Governmental Entity or the publication of SJW and CTWS shall: (A) reasonably cooperate with any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates must be approved by Purchaser and, to the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested extent involving a concession or commitment made by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger Seller or any of its Affiliates (excluding the other transactions contemplated by this AgreementCompany), including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the MergerSeller.
(d) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Purchaser nor any other provision of this Agreement, SJW and the SJW Subsidiaries its Affiliates shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of neither Seller nor the respective businesses, product lines or assets of SJW, CTWS or Company nor any of their respective Subsidiaries Affiliates shall, in connection with obtaining the Required Regulatory Approvals or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d)setting such filings for hearing, unless and to the extent such divestiture settlement or other investigation, consent to or take any action wouldin each case, that would reasonably be expected to have, individually or in the aggregate, have a material adverse effect on the business, assets, results of operations or reasonably financial condition of Purchaser and its Affiliates (including the Company) taken as a whole, after giving effect to the Sale; provided, that Purchaser and its Affiliates (including the Company) shall be expected deemed to have be the same size as the Business for purposes of this Section 5.5(d) (any such action or requirement, a Regulatory “Purchaser Burdensome Condition”). For the avoidance of doubt, none of the exclusions set forth in the definition of “Business Material Adverse Effect. In addition, neither SJW nor any of its Affiliates ” shall be under deemed to apply to any obligation reference to take any action under “material adverse effect” in this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement5.5(d).
(e) Notwithstanding any other provision of the foregoing or anything else in this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates Agreement to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreementcontrary, (i) neither SJW Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller, any of its Affiliates or any of their respective Representatives shall cooperate businesses, other than terms, conditions or limitations on or with any third party in seeking regulatory clearance respect to the Company (excluding the Elizabethtown Gas and Elkton Gas operating divisions of any SJW Takeover Proposal and (iithe Company) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposalthe Business.
Appears in 1 contract
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablepossible, the Merger and Transactions, including the other transactions contemplated by this AgreementMerger.
(b) Without limiting the generality of Section 6.03(a), SJW Parent and the SJW Parent Board and CTWS the Company and the CTWS Company Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting Parent shall take reasonable best efforts to obtain the generality expiration or early termination of Section 6.03(a):
the HSR Act waiting period, including but not limited to (i) As promptly as reasonably practicable following jointly proposing with the date Company to negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license, or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of, any portion of the business, properties or assets of Parent, the Company or any of their respective Subsidiaries, (ii) terminating, modifying, or assigning existing relationships, contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, SJW (iii) changing or modifying any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise taking or committing to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates' freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement (collectively, a "Divestiture Action"); provided that Parent or any Parent Subsidiaries are not obligated to take any Divestiture Action or other action unless such action is expressly conditioned upon and CTWS each is only effective after the Closing of the Merger and such action would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Parent and its Subsidiaries from and after the Effective Time, taken as a whole. The Company shall file agree to take any Divestiture Action requested by Parent if such actions are only effective after the Effective Time and conditioned upon the consummation of the Merger. In the event that any Divestiture Action is proposed by or acceptable to a Governmental Entity, Parent shall have the right to determine the manner in which to implement the requirement of such Governmental Entity; provided, that in no event shall Parent or the Company (or any of their respective Subsidiaries or other Affiliates) be required to take or effect any such action that is not conditioned upon the consummation of the Merger; provided, further, that Parent shall consult with the United States Federal Trade Commission Company and give consideration to the views of the Company on all matters relating to any possible Divestiture Action.
(d) In addition, if any action or Proceeding is instituted (or threatened) challenging the “FTC”Merger or any other transaction contemplated by this Agreement as violating any antitrust, competition, foreign investment, trade regulation or similar Law or if any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Merger or any other transaction contemplated by this Agreement illegal or otherwise delay or prohibit the consummation of the Merger or any other transaction contemplated by this Agreement, Parent, its Affiliates and Subsidiaries and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification Company, its Affiliates and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) belowSubsidiaries, SJW and CTWS each shall use reasonable best efforts to obtain early termination (subject the limitations set forth in Section 6.03(c)) contest and defend any such Claim, cause of action, or Proceeding to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded, or terminated, any waiting period under decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) that prohibits, prevents, or restricts consummation of the HSR Act and SJW and CTWS Merger or any other transaction contemplated by this Agreement. Parent shall eachbe entitled to direct any such action or Proceeding described in this Section 6.03(d); provided, as promptly as reasonably practicablehowever, (A) supply that it shall afford the other with any information which may be required in order Company a reasonable opportunity to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJparticipate therein.
(iie) Each Without limiting the generality of SJW the foregoing, each of Parent and CTWS shall use reasonable best efforts to prepare and file, the Company shall:
(i) make or cause to be prepared made, in consultation and filed, cooperation with the other and as promptly as reasonably practicable after the date of this Agreement, all filings, submissions an appropriate filing of a Notification and registrations required to be made Report Form pursuant to the PURA HSR Act relating to the Merger;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the MPUCeffects set forth in Section 6.03(b);
(iii) give the other reasonable prior notice of any such registration, and all other applicationsdeclaration, noticesnotice, registrationsapplication or filing and, filingsto the extent reasonably practicable, reports and other documents required to be filed of any communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin Section 6.03(c) and in this Section 6.03(e)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, notice, filing, application or communication;
(iv) use its reasonable best efforts to respond as promptly as practicable under the circumstances to any proposed inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a "second request" under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to consummate any of the Transactions, except with the prior written communication consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed;
(v) unless prohibited by such party applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf respect of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity including with respect to the Merger or any of the other transactions contemplated by actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation or a communication is initiated by a Governmental Entity without advance notice, keep the other party informed as to the status of any such legal proceeding or threatreasonably apprised with respect thereto, and (CD) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist the filing of any such action or proceeding and to have vacatedsubstantive memoranda, liftedParent papers, reversed or overturned any decreefilings, Judgment, injunction correspondence or other orderwritten communications explaining or defending this Agreement and the Merger, whether temporary, preliminary articulating any regulatory or permanent, that is in effect competitive argument or responding to requests or objections made by any Governmental Entity and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(ivE) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by furnish the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery with copies of all documentscorrespondence, certificatesfilings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, agreements on the one hand, and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and any Governmental Entity or members of any Governmental Entity's staff, on the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approvalhand, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts this Agreement and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS provided that each party may designate information as "outside counsel only," and the CTWS Subsidiaries shall be required receiving party agrees to sell, divest or hold separate or otherwise take or commit instruct its counsel not to take any action that limits disclose such information to its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreementclient.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW Qwest and the SJW Qwest Board and CTWS CenturyLink and the CTWS Board, as the case may be, CenturyLink Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), Qwest and CenturyLink shall promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity of any jurisdiction Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and which the parties may reasonably deem appropriate, and (C) subject to applicable Law the limitations set forth in Section 6.03(e), Qwest and CenturyLink shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or approval or otherwise, the instructions of any Governmental Entitysale, keep each other apprised of divestiture or disposition of, or prohibition or limitation on the status of matters relating ownership or operation of, or requirements or undertakings with respect to the completion of the transactions contemplated therebyconduct by Qwest, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, CenturyLink or any of their respective Subsidiaries, from of any third party and/or portion of the business, properties or assets of Qwest, CenturyLink or any Governmental Entity with respect of their respective Subsidiaries; provided, however, that neither CenturyLink nor Qwest shall be required pursuant to such transactionsthis Section 6.03(c) to commit to or effect any action that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to result in a Substantial Detriment. No party If the actions taken by CenturyLink and Qwest pursuant to the immediately preceding sentence do not result in the conditions set forth in Section 7.01(d), (e) and (f) being satisfied, then, during the term of this Agreement, each of CenturyLink and Qwest shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect jointly (to any such filings, investigation or other inquiry without using the extent practicable) use their reasonable best efforts to give initiate and/or participate in any proceedings, whether judicial or administrative, in order to (to the extent feasible and appropriatei) the other party prior notice of the meeting oppose or conversation and, unless prohibited defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, and/or (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contractsappeal if necessary, offering customary feesany Legal Restraint resulting from any suit, discounts and action or other incentives to such parties on commercially reasonable terms and paying legal proceeding that would cause any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions condition set forth in Section 7.01(d), unless (e) or (f) not to be satisfied; provided that CenturyLink and Qwest shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the extent foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of CenturyLink and Qwest shall:
(i) make or cause to be made, in consultation and cooperation with the other and within twenty-one days after the date of this Agreement (or such divestiture other time as the parties mutually agree), (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) (A) make or cause to be made, in consultation and cooperation with the other action wouldand as promptly as practicable after the date of this Agreement, all applications required to be filed with the FCC (the “FCC Applications”) and any State Regulators (the “PSC Applications”) to effect the transfer of control of the Qwest Licenses and/or CenturyLink Licenses, as necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, and use its reasonable best efforts to respond in consultation and cooperation with the other and as promptly as practicable to any additional requests for information received from the FCC or any State Regulator by any party to an FCC Application or PSC Application and (B) use its reasonable best efforts to cure not later than the Effective Time any violations or defaults under any FCC Rules or rules of any State Regulator, except for such violations or defaults that, individually or in the aggregate, have or would not reasonably be expected to have a Regulatory Material Adverse Effect. In additionSubstantial Detriment;
(iii) use its reasonable best efforts to furnish to the other all assistance, neither SJW nor cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c);
(iv) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of its Affiliates shall be under any obligation the actions referred to take any action under in Section 6.03(c) and in this Section 6.03(d)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;
(v) if use its reasonable best efforts to respond as promptly as reasonably practicable under the FTC circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the DOJ authorizes its staff HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to seek a preliminary injunction or restraining order to enjoin consummation consummate any of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this Section 6.03(d)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, except that any materials concerning valuation of the other party may be redacted or withheld.
(e) Notwithstanding any other provision anything else contained herein but subject to the proviso of the second sentence of Section 6.03(c), the provisions of this AgreementSection 6.03 shall not be construed to require Qwest, CTWS and the CTWS CenturyLink, or their respective Subsidiaries shall be required to selloffer, divest or hold separate or otherwise take or take, commit to take or accept any action that limits its freedomaction, restrictions or limitations (“Actions”) of or on Qwest, CenturyLink, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s their respective Subsidiaries, or any to permit such Actions without the prior written consent of the respective businessesother party, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent if such divestiture or other action wouldActions, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(f) Notwithstanding any other provision of anything else contained in this Agreement, during the term of this Agreement (i) neither SJW CenturyLink nor any of its Affiliates or any of their respective Representatives shall cooperate with any third other party in seeking regulatory clearance of any SJW CenturyLink Takeover Proposal and (ii) neither CTWS Qwest nor any of its Affiliates or any of their respective Representatives shall cooperate with any third other party in seeking regulatory clearance of any CTWS Qwest Takeover Proposal.
(g) CenturyLink shall give prompt notice to Qwest, and Qwest shall give prompt notice to CenturyLink, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Centurytel Inc)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement, including obtaining all necessary Governmental Entity and third party consents, approvals and authorizations.
(b) Without limiting the generality of Section Section 6.03(a), SJW Potlatch and the SJW Potlatch Board and CTWS Deltic and the CTWS Deltic Board, as the case may be, shall use their respective reasonable best efforts to (xi) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (yii) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Should Potlatch or any Potlatch Subsidiary own shares of Deltic Common Stock entitled to vote at the Deltic Stockholders Meeting, Potlatch shall, and shall cause its Subsidiaries to, vote all such shares of Deltic Common Stock in favor of the proposal to adopt this Agreement.
(d) Without limiting the generality of Section 6.03(a):the foregoing, each of Potlatch and Deltic shall:
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, make or cause to be prepared made, in consultation and filed, cooperation with the other (A) as promptly as reasonably practicable after the date of this Agreement, all filingsand in any event within 20 days of this Agreement, submissions an appropriate filing of a Notification and registrations required to be made Report Form pursuant to the PURA HSR Act with respect to the transactions contemplated by this Agreement and (B) as promptly as practical after the MPUCdate of this Agreement, and all other applicationsnecessary registrations, declarations, notices, registrationsapplications and filings relating to the Merger with applicable Governmental Entities under any applicable antitrust, filingscompetition, reports foreign investment, trade regulation or similar Laws;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the effects set forth in Section 6.03(d);
(iii) give the other documents required reasonable prior notice of any such registration, declaration, notice, application or filing and, to be filed the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin this Section 6.03(d)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, notice, filing, application or communication;
(iv) use its reasonable best efforts to respond (including by providing any proposed written communication by such party requested information or documentation reasonably available) as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for information or documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters and not enter into any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made agreement with such Governmental Entities or submitted by or on behalf of any party in connection with proceedings under or relating other authorities not to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or consummate any of the other transactions contemplated by this Agreement, but subject to Section 6.03(e);
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in this Section 6.03(d)) without the other, (B) keep to the extent reasonably practicable, give the other party informed as to the status reasonable prior notice of any such legal proceeding meeting or threatconversation, and (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other parties with copies of all material respects with each other correspondence, filings and shall use communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger; and
(vi) use its reasonable best efforts to contest and resist any such action or proceeding avoid the entry of, and to have vacated, lifted, reversed or overturned overturned, any decree, Judgmentjudgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibitswould prevent, prevents restrain or restricts consummation of delay the Merger or the other transactions contemplated herebyClosing.
(ive) Each of SJW and CTWS shall: (A) reasonably cooperate with Notwithstanding anything to the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party contrary contained in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision provisions of this AgreementSection 6.03 and Section 6.09 shall not be construed to (i) require Potlatch or any Potlatch Subsidiary or Deltic or any Deltic Subsidiary or (ii) permit Deltic or any Deltic Subsidiary without the prior written consent of Potlatch, SJW and the SJW Subsidiaries shall be required to sell, divest undertake any efforts or hold separate or otherwise take or commit to take any action that limits its freedomif the taking of all such efforts or action, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have would or would reasonably be expected to have result (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) in a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a “Regulatory Material Adverse Effect. In addition” means any fact, neither CTWS nor any circumstance, effect, change, event or development that has a material adverse effect on the business, properties, financial condition or results of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation operations of the transactions contemplated by this AgreementCombined Company.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Required Actions. Each of BAT and Parent hereby agrees from and after the date hereof and until the earlier of the Closing Date and the termination of this Agreement to and to cause their respective subsidiaries to:
(a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to take, or cause furnish to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doingall reasonable assistance, all things necessary, proper or advisable cooperation and information required for a filing under applicable Laws the HSR Act relating to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.;
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and give the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
reasonable prior notice (cand copies) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of this Agreementany registration, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms declaration, submission, notice or filing relating to the transactions contemplated herein any filings required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall eachrelating to the Transactions and, as promptly as to the extent reasonably practicable, (A) supply the other of any communication with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by Government Entity regarding the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and fileTransactions, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review review, discuss in advance, and consider in good faith the views of of, and, to the extent practicable and legally permissible, secure the participation of, the other in connection withwith any such registration, declaration, submission, notice, filing and communication;
(c) unless prohibited by applicable Law or by the applicable Government Entity, (A) to the extent reasonably practicable, give the other reasonable prior notice of its intent to participate in or attend any proposed written communication by such party meeting, proceeding or engage in any conversation with respect to any Governmental Entity in connection with any analysesrespect of the Transactions, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating (B) to the HSR Actextent reasonably practicable, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt reasonable prior notice of any such meeting, proceeding or conversation and allow the commencement other the opportunity to participate in any such meeting, proceeding or threat conversation, (C) in the event that the other is prohibited by applicable Law or by the applicable Government Entity from participating in such conversation, consult with, and keep the other reasonably apprised with respect thereto and (D) furnish the other with copies of commencement of any legal proceeding by or before all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and its respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threatTransactions, and (C) cooperate in Parent’s case, furnish BAT with copies of all material respects with each other correspondence, filings and shall use communications it receives from the Company or the Company’s Affiliates or their respective reasonable best efforts Representatives pursuant 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 Section 6.03(g)(vi) of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including in each case, to the SJW Regulatory Approvals extent practicable and the CTWS Regulatory Approvalslegally permissible and subject to redaction of competitively sensitive information, valuation material or information subject to attorney client privilege, as applicable; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.and
(d) Notwithstanding furnish the other with copies of (including drafts as they become available), and give the other the opportunity to review and comment upon, any report or other provision of this Agreement, SJW and form to be filed with the SJW Subsidiaries shall be required to sell, divest SEC or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates UK Listing Authority with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy Transactions as well as any comments from or correspondence with the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC SEC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementUK Listing Authority relating thereto.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Subscription and Support Agreement (Reynolds American Inc)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties party in doing, all things necessary, proper or advisable under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW Weyerhaeuser and the SJW Weyerhaeuser Board and CTWS Plum Creek and the CTWS Plum Creek Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):the foregoing, each of Weyerhaeuser and Plum Creek shall:
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, make or cause to be prepared made, in consultation and filed, cooperation with the other and as promptly as reasonably practicable after the date of this Agreement, all filingsnecessary registrations, submissions and registrations required to be made to the PURA and the MPUC, and all other applicationsdeclarations, notices, registrationsapplications and filings relating to the Merger with other Governmental Entities under any foreign antitrust, filingscompetition, reports foreign investment, trade regulation or similar Laws;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the effects set forth in Section 6.03(c);
(iii) give the other documents required reasonable prior notice of any such registration, declaration, notice, application or filing and, to be filed the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin this Section 6.03(c)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, notice, filing, application or communication;
(iv) use its reasonable best efforts to respond as promptly as practicable under the circumstances to any proposed written communication by such party to inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for information or documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters and not enter into any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made agreement with such Governmental Entities or submitted by or on behalf of any party in connection with proceedings under or relating other authorities not to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or consummate any of the other transactions contemplated by this Agreement, (B) keep except with the other party informed as to the status prior written consent of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute which consent shall not be unreasonably withheld, conditioned or delayed; and
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in this Section 6.03(c)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and deliver such further documentsthe Merger, certificates, agreements articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and instruments and take such other actions as may be reasonably requested by (E) furnish the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery with copies of all documentscorrespondence, certificatesfilings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, agreements on the one hand, and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and any Governmental Entity or members of any Governmental Entity’s staff, on the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approvalhand, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts this Agreement and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of anything to the contrary contained in this Agreement, SJW and the SJW Subsidiaries provisions of this Section 6.03 shall not be required construed to sell(i) require Weyerhaeuser or any Weyerhaeuser Subsidiary or Plum Creek or any Plum Creek Subsidiary or (ii) permit Plum Creek or any Plum Creek Subsidiary without the prior written consent of Weyerhaeuser, divest to undertake any efforts or hold separate or otherwise take or commit to take any action that limits its freedomif the taking of all such efforts or action, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have would or would reasonably be expected to have result (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) in a Regulatory Material Adverse Effect. In addition“Regulatory Material Adverse Effect” means any fact, neither SJW nor any circumstance, effect, change, event or development that materially adversely affects the business, properties, financial condition or results of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation operations of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS Surviving Corporation and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS taken as a whole; provided that for purposes of determining whether any fact, circumstance, effect, change, event or CTWS’s Subsidiaries, development would or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any the Surviving Corporation and its Subsidiaries will collectively be deemed to be a company the size of (and with net sales and net earnings equal to the comparable financial metrics of those of) Plum Creek and its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek Subsidiaries, taken as a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreementwhole.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Weyerhaeuser Co)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.03(a), SJW and the SJW Board and CTWS and the CTWS Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable advisable following the date of this Agreement, SJW and CTWS each :
(i) the Parties shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii7.2(b) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall eachParty shall, as promptly as reasonably practicable, (A) supply the other Parties with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.; and
(ii) Each the Parties shall file a request for an advance ruling certificate under section 102 of SJW the Competition Act (an “Advance Ruling Certificate”) or, in the alternative, confirmation that the Commissioner of Competition appointed under the Competition Act (including any person designated by the Commissioner on his behalf) (the “Commissioner”) does not, at that time, intend to make an application under section 92 of the Competition Act (a “No Action Letter”) along with a waiver of the notification obligation under section 113(c) of the Competition Act. If mutually agreed between the Parties, each Party will prepare and CTWS submit, within ten (10) Business Days of such agreement, the notification and information required under subsection 114(1) of the Competition Act. The Parties shall use reasonable best efforts to obtain the Competition Act Approval in respect of the Business Combination and will supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested by the Commissioner to obtain the Competition Act Approval, as soon as reasonably practicable and they will respond to any requests for additional information made by the Commissioner in order to cause the waiting periods under the Competition Act to terminate, expire or be waived, at the earliest possible date. Without limiting the foregoing, each Party shall, as promptly as reasonably practicable, (A) supply the other Parties with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the Commissioner.
(b) The Parties shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this AgreementAgreement but in no event more than sixty (60) Business Days or by such other time as is mutually agreed to by Corix and IIF Subway, (i) all filings, submissions and registrations required or advisable to be made to the PURA and the MPUCCFIUS, and to all applicable Governmental Entities, (ii) in the case of the SWWC Parties, a notification under section 12 of the ICA and (iii) all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger Business Combination and the other transactions contemplated by this Agreement, including all SJW Corix Regulatory Approvals and all CTWS SWWC Regulatory ApprovalsApprovals except for any filings in connection with the HSR Act and the Competition Act which shall be prepared and filed in accordance with Section 7.2(a). Each of CTWS and SJW Party shall, as promptly as reasonably practicable, ,
(A) supply the other Parties with any information which reasonably may be required in order to effectuate such filings, except, with respect to the CFIUS process, any exhibits to such communications providing the personal identifying information required by 31 C.F.R. §800.502(c)(6)(vi), information otherwise requested by CFIUS to remain confidential or information reasonably determined by the Parties to be business confidential information, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties Parties may reasonably deem appropriate, appropriate and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, as the case may be, a Party or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. No party Other than with respect to the Excluded Business Carveout (solely to the extent any such meeting or substantive conversation is reasonably anticipated to be wholly unrelated to the SWWC Parties, the Corix Water Business and the Business Combination), no Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party Parties prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties Parties will consult and cooperate with one another and permit the other party Party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written or oral communication by such party Party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party Party in connection with proceedings under or relating to the HSR Act, the Competition Act, other antitrust Laws Laws, Investment Canada, DPA or any applicable state Laws in connection with the Merger Business Combination and the other transactions contemplated by this Agreement (other than with respect to the Excluded Business Carveout (solely to the extent any such written or oral communication is wholly unrelated to the SWWC Parties, the Corix Water Business and the Business Combination)).
(c) The Corix Parties and the SWWC Parties each shall, and shall cause their Subsidiaries to, (i) use reasonable best efforts to obtain, and to maintain in full force and effect once obtained, any approval, consent, ratification, permission, waiver or authorization required to be obtained from any Governmental Entity with respect to the Business Combination and the other transactions contemplated by this Agreement, including all Corix Regulatory Approvals and all SWWC Regulatory Approvals, prior to the Closing, and (ii) reasonably cooperate with the other in connection therewith. Notwithstanding anything contained in this Agreement (including the immediately preceding sentence and the obligations set forth in Sections 7.2(a) and 7.2(b)),
(i) none of the Corix Parties nor any of their respective Affiliates shall be required to, and none of Corix nor any of the Contributed Corix Entities shall be permitted to without IIF Subway’s prior written approval, in connection with obtaining any Corix Regulatory Approvals, agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) as a condition to obtaining the Corix Regulatory Approvals that would, individually or in the aggregate, have or reasonably be expected to have a Corix Burdensome Effect and
(ii) neither the SWWC Parties nor any of their respective Subsidiaries shall be required to, and neither the SWWC Parties nor any of their respective Subsidiaries shall be permitted to without Corix’s prior written approval, in connection with obtaining any SWWC Regulatory Approvals, agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) as a condition to obtaining the SWWC Regulatory Approvals that would, individually or in the aggregate, have or reasonably be expected to have an SWWC Burdensome Effect. Nothing contained in this Agreement (including the obligations set forth in the first sentence of this Section 7.2(c) and Sections 7.2(a) and 7.2(b)) shall require (x) the Corix Parties or any of their respective Affiliates to agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) in connection with obtaining the Corix Regulatory Approvals to take any action or agree to any commitment that is not conditioned on the Closing or (y) the SWWC Parties or any of their respective Subsidiaries to agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings (including settlements, stipulations, operational restrictions, hold separate orders, divestitures or otherwise) in connection with obtaining the SWWC Regulatory Approvals to take any action or agree to any commitment that is not conditioned on the Closing.
(iiid) Each of SJW The Corix Parties and CTWS the SWWC Parties shall each (Ai) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger Business Combination or any of the other transactions contemplated by this Agreement, (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (Ciii) cooperate in all material respects with each other with respect to any such action or proceeding. Notwithstanding anything to the contrary contained in this Agreement (including the obligations set forth under this Section 7.2), the Parties acknowledge and agree that absent its prior written consent, neither the Corix Parties nor the SWWC Parties shall have any obligation to initiate or defend any such action or proceeding, whether judicial or administrative, challenging the Business Combination or any of the other transactions contemplated by this Agreement, including any obligation to seek to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed.
(e) The Corix Parties and the SWWC Parties each shall, and shall cause their Subsidiaries to, (i) use their respective reasonable best efforts to contest and resist any such action or proceeding obtain, and to have vacatedmaintain in full force and effect once obtained, liftedany approval, reversed consent, ratification, permission, waiver or overturned authorization required to be obtained from any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation party to any Corix Water Material Contract identified on Section 7.2(e)(i) of the Merger Corix Disclosure Letter or SWWC Material Contract identified on Section 7.2(e)(ii) of the other transactions contemplated hereby.
SWWC Disclosure Letter (ivcollectively, the “Required Third-Party Consents”) Each of SJW prior to the Closing, and CTWS shall: (Aii) reasonably cooperate with the other partyin connection therewith; provided, however, that the Corix Parties and the SWWC Parties (and each of their respective Subsidiaries) shall not be required to (x) take an action unless the effectiveness of such action is contingent upon the consummation of the Business Combination or (y) make any payments or incur any Loss to obtain any consents of third parties contemplated by this Section 7.2(e). Unless prohibited by Law, each Party shall promptly notify the other of any notice or other communication from any Person alleging that such Person’s approval, authorization, consent or Permit is or may be required in connection with the Business Combination.
(f) The Corix Parties and the SWWC Parties shall each reasonably cooperate with the other, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Transaction Agreement
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW Pine and the SJW Pine Board and CTWS Cedar and the CTWS Board, as the case may be, Cedar Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), promptly as reasonably practicable following the date execution and delivery by the parties of this Agreement, SJW Pine and CTWS each Cedar shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 6.03(e), Pine and Cedar shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation by Pine, Cedar or any of their respective Subsidiaries of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised portion of the status business, properties or assets of matters relating to the completion of the transactions contemplated therebyPine, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, Cedar or any of their respective Subsidiaries; provided, from however, that neither Cedar nor Pine shall be required pursuant to this Section 6.03(c) to commit to or effect any third party and/or any Governmental Entity with respect action that is not conditioned upon the consummation of the Merger. If the actions taken by Cedar and Pine pursuant to such transactions. No party the immediately preceding sentence do not result in the conditions set forth in Section 7.01(d), (e) and (f) being satisfied, then each of Cedar and Pine shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect jointly (to any such filings, investigation or other inquiry without using the extent practicable) use their reasonable best efforts to give initiate and/or participate in any proceedings, whether judicial or administrative, in order to (to the extent feasible and appropriatei) the other party prior notice of the meeting oppose or conversation and, unless prohibited defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, and/or (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contractsappeal if necessary, offering customary feesany Legal Restraint resulting from any suit, discounts and action or other incentives to such parties on commercially reasonable terms and paying legal proceeding that would cause any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions condition set forth in Section 7.01(d), unless (e) or (f) not to be satisfied; provided that Cedar and Pine shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the extent foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of Cedar and Pine shall:
(i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) (A) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, all applications required to be filed with the FCC (the “FCC Applications”) and any State Regulators (the “PSC Applications”) to effect the transfer of control of the Pine Licenses and/or Cedar Licenses, as necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, and use its reasonable best efforts to respond as promptly as practicable to any additional requests for information received from the FCC or any State Regulator by any party to an FCC Application or PSC Application and (B) use its reasonable best efforts to cure not later than the Effective Time any violations or defaults under any FCC Rules or rules of any State Regulator, except for such divestiture violations or other action woulddefaults that, individually or in the aggregate, have or would not reasonably be expected to have a Regulatory Material Adverse Effect. In additionSubstantial Detriment;
(iii) use its reasonable best efforts to furnish to the other all assistance, neither SJW nor cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c);
(iv) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 6.03(c)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;
(v) use its Affiliates shall be reasonable best efforts to respond as promptly as reasonably practicable under the circumstances to any obligation inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to take consummate any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, except that any materials concerning valuation of the other party may be redacted or withheld.
(e) Notwithstanding any other provision anything else contained herein but subject to the proviso of the second sentence of Section 6.03(c), the provisions of this AgreementSection 6.03 shall not be construed to require or permit Pine, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedomCedar, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries from offering, taking, committing to or Affiliates to accepting any action, restrictions or limitations (“Actions”) of or on Pine, Cedar, or their respective Subsidiaries without the extent necessary to satisfy prior written consent of the conditions set forth in Section 7.01(d), unless and to the extent other party if such divestiture or other action wouldActions, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Centurytel Inc)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS shall each party hereto will use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and applicable laws and regulations to consummate and make effective, as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Burlington Necessary Consents or ConocoPhillips Necessary Consents, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (collectively, the "REQUIRED APPROVALS") and (ii) taking all reasonable steps as may be necessary to obtain all such Necessary Consents and the Required Approvals. In furtherance and not in limitation of the foregoing, each of ConocoPhillips and Burlington agrees to prepare, as promptly as practicable, and to make (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby (within thirty (30) Business Days), (B) appropriate filings with the European Commission, if required, in accordance with applicable Regulatory Laws at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis, and (C) all other necessary filings with other Governmental Entities relating to the Merger at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis, and, to prepare to supply as promptly as practicable any additional information or documentation that may be requested pursuant to such laws or by such Governmental Entities, and to supply such additional information and documentation at such time as ConocoPhillips reasonably determines in its judgment will permit the consummation of the transactions contemplated hereby in a timely basis and to use reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and the receipt of Required Approvals under such other laws or from such authorities as soon as practicable. In furtherance and not in limitation of the foregoing, Burlington agrees not to extend any waiting period under the HSR Act or enter into any agreement with the FTC or the DOJ not to consummate the transactions contemplated by this Agreement, except with the prior written consent of ConocoPhillips.
(b) Without limiting The parties shall each cooperate and consult with each other in connection with the generality actions referenced in Section 6.4(a) to obtain all Required Approvals. In particular, Burlington shall (i) furnish as promptly as reasonably practicable to ConocoPhillips any information concerning Burlington and its business, properties and personnel as ConocoPhillips may reasonably request, in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, and (ii) permit ConocoPhillips to review in advance, and accept all of Section 6.03(a)ConocoPhillips' reasonable comments in connection with, SJW any proposed written communication between it and any Governmental Entity. In addition, each party shall (i) promptly inform the SJW Board other party of (and CTWS supply to the other party) any communication (or other correspondence or memoranda) received by such party from, or given by such party to, the DOJ, the FTC or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the CTWS Boardtransactions contemplated hereby, as and (ii) consult with the case may beother party in advance, shall use their respective reasonable best efforts to the extent practicable and not prohibited by law, of any meeting or conference with the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC or such other applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings and conferences. In furtherance and not in limitation of the foregoing, Burlington agrees that notwithstanding anything to the contrary in this Agreement, ConocoPhillips will take the lead in all meetings and communications with any Governmental Entity in connection with any Antitrust Laws, including by determining the appropriate timing of any such meeting or communication (including (x) the timing of the submission of any filing with, or response to any request by, a Governmental Entity, and (y) the timing of any action taken pursuant to 6.4(c)) such that the requisite approvals are obtained prior to the Termination Date.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.4(a) and 6.4(b) but subject to Section 6.4(b), Burlington and ConocoPhillips, as applicable, shall take all actions necessary to:
(i) avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, on or before the Termination Date, including without limitation defending through litigation on the merits any claim asserted in any court by any Person; and
(ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Termination Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of ConocoPhillips, Burlington and their respective Subsidiaries and (y) otherwise taking or committing to take actions that after the Closing Date would limit ConocoPhillips or its Subsidiaries' freedom of action reasonably appropriate with respect to, or its or their ability to ensure retain, one or more of the businesses, product lines or assets of ConocoPhillips, Burlington and their respective 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 suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing. ConocoPhillips and, if requested by ConocoPhillips, Burlington shall agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that no limits its freedom of action with respect to, or ConocoPhillips or ConocoPhillips' Subsidiaries' ability to retain, any of the businesses, product lines or assets of ConocoPhillips, Burlington or any of their respective Subsidiaries, provided that any such action is conditioned upon the consummation of the Merger. Burlington agrees and acknowledges that, notwithstanding anything to the contrary in this Section 6.4, in connection with any filing or submission required, action to be taken or commitment to be made by ConocoPhillips, Burlington or any of their respective Subsidiaries to consummate the Merger or other transactions contemplated by this Agreement, neither Burlington nor any of Burlington's Subsidiaries shall, without ConocoPhillips' prior written consent, sell, divest, or dispose of any assets, commit to any sale, divestiture or disposal of businesses, product lines or assets of Burlington and Burlington's Subsidiaries or take any other action or commit to take any action that would limit Burlington's, ConocoPhillips' or any of their respective Subsidiaries' freedom of action with respect to, or their ability to retain any of, their businesses, product lines or assets; provided that the foregoing shall not relieve any party of its obligations under this Agreement.
(d) Each party hereto and its respective Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction transactions contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreementhereby, take all action reasonably appropriate necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting hereby and otherwise to minimize the generality effect of Section 6.03(a):
(i) As promptly as reasonably practicable following the date of such statute or regulation on this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations required to be made to the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Conocophillips)
Required Actions. (a) Subject to the terms and conditions of set forth in this Agreement, SJW, Merger Sub and CTWS shall each of the Parties agrees to use its respective reasonable best efforts to 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 under applicable Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) obtain all required consents, approvals or waivers from third parties, including as required under any Material Contract or Material Lease and (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and take all reasonable best efforts to obtain an approval or waiver from, or to avoid any Action by, any Governmental Entity, including making the Regulatory Filings and obtaining the HSR Antitrust Clearance and the CFIUS Approval.
(b) Without limiting In connection with, and without limiting, the generality of efforts referenced in Section 6.03(a6.04(a), SJW Parent or Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the SJW Board and CTWS Company (and the CTWS BoardCompany Subsidiaries, as if applicable), on the case may beother hand, shall use their respective reasonable best efforts (i) prepare and file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated hereby as required by this Agreement may be consummated the HSR Act as promptly soon as reasonably practicable on after the terms contemplated by date of this Agreement.
Agreement (c) Without limiting the generality of Section 6.03(a):
(i) As promptly as reasonably practicable and in any event within 30 days following the date of this Agreement), SJW (ii) jointly prepare and CTWS each shall pre-file with CFIUS a draft joint voluntary notice pursuant to the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms DPA relating to this Agreement and the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, hereby as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly soon as reasonably practicable after the date of this Agreement, and then as soon as reasonably practicable after CFIUS notification that the draft joint voluntary notice meets all filingsrequirements of 31 C.F.R. § 800.402 of the regulations, submissions jointly file with CFIUS a joint voluntary notice pursuant to the DPA with respect to the transactions contemplated by this Agreement, and registrations (iii) promptly determine whether any other filings are required to be made to the PURA and the MPUCwith, and all whether any other applicationsconsents, noticesapprovals, registrations, filings, reports and other documents permits or authorizations are required to be filed with obtained from, any Governmental Entity under any other applicable Law in connection with the transactions contemplated hereby, and if so, to prepare and file any such filings and to seek any such other consents, approvals, permits or authorizations (the filings described in the foregoing clauses (i) through (iii) collectively, “Regulatory Filings”).
(c) In connection with, and without limiting, the efforts referenced in Section 6.04(a) or the obligations of the Parties under Section 6.04(b), each of Parent and the Company shall, to the extent permitted by applicable Law and not prohibited by the applicable Governmental Entity, (i) cooperate and coordinate with the other Parties in the making of Regulatory Filings (including, to the extent permitted by applicable Law, providing copies, or portions thereof, 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, request or other inquiry of any Governmental Entity under any applicable Law with respect to any Regulatory Filing, (ii) supply the other Parties with any information and reasonable assistance that may be required or reasonably requested in connection with the making of any Regulatory Filing within a reasonable period, (iii) supply, within an allowed reasonable period, any additional or supplemental information or assistance that may be required or requested by the FTC, the DOJ, CFIUS and any other applicable Governmental Entity to which any such filing is made under any other applicable Law, and (iv) subject to Section 6.04(f), use reasonable best efforts to 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 obtain the HSR Antitrust Clearance and the CFIUS Approval, in each case as soon as practicable, and to avoid any impediment to the consummation of the Merger under any applicable Law, including using reasonable best efforts to take all such action as may be necessary to resolve such objections, if any, as the FTC, the DOJ, CFIUS or any other Governmental Entity or Person may assert with respect to the Merger and or the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. .
(d) Each of CTWS Parent and SJW Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the Company (and the Company Subsidiaries, if applicable), on the other hand, shall, as promptly as reasonably practicable, (A) supply to the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required extent practicable and unless prohibited by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and or by the instructions of any applicable Governmental Entity, keep each promptly inform the other apprised Parties of the status of matters relating to the completion any material communication from any Governmental Entity regarding any of the transactions contemplated therebyby this Agreement in connection with any Regulatory Filings or investigations with, by or before any Governmental Entity relating to this Agreement or the transactions contemplated hereby, including promptly furnishing the other with copies of notices any Actions initiated by a private party. If any Party or Subsidiary or other communications received by the SJW Affiliate thereof shall receive a request for additional information or CTWS, as the case may be, or any of their respective Subsidiaries, documentary material from any third party and/or any Governmental Entity with respect to a Regulatory Filing, then such transactions. No party Party shall independently participate in any meetinguse its reasonable best efforts to make, or engage cause to be made, as soon as reasonably practicable, an appropriate response in any substantive conversationcompliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Entity, the Parties will (i) give each other reasonable advance notice of all meetings with any Governmental Entity relating to the Merger or any other transactions contemplated hereby, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other Parties apprised with respect to any such filingsmaterial communications with any Governmental Entity regarding the Merger or any other transactions contemplated hereby, investigation (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other inquiry without using reasonable best efforts written communications explaining or defending the Merger or any other transactions contemplated hereby, articulating any regulatory or competitive argument or responding to give (to the extent feasible and appropriate) the other party prior notice of the meeting requests or conversation and, unless prohibited objections made by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate (v) provide each other with one another and permit the other party or its counsel a reasonable advance opportunity to review in advanceand comment upon, and consider in good faith the views of the other in connection withwith respect to, any proposed all material written communication by such party to any Governmental Entity in connection with any communications (including applications, analyses, appearances, presentations, memoranda, briefs, arguments, opinions arguments and proposals made or submitted by or on behalf of any party in connection opinions) with proceedings under or relating to a Governmental Entity regarding the HSR Act, other antitrust Laws Merger or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
hereby, and (iiivi) Each provide each other (or counsel of SJW and CTWS shall (Aeach Party, as appropriate) give the other party prompt notice with copies of the commencement all material written communications to or threat of commencement of any legal proceeding by or before from any Governmental Entity with respect relating to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby. Any such disclosures, rights to participate or provisions of information by one Party to the other may be made on a counsel-only basis if allowed or required under applicable Law.
(ive) Each In connection with, and without limiting, the efforts referenced in Section 6.04(a) or the obligations of SJW and CTWS shall: (A) reasonably cooperate with the other partyParties under Section 6.04(b), execute and deliver such further documents, certificates, agreements and instruments and take such other actions except as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by otherwise provided in this Agreement (including Section 6.04(f)), each of Parent, Merger Sub and the execution Company shall offer to take (and delivery of if such offer is accepted, to take or commit to take) all documentssteps: (i) necessary to obtain all consents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) approvals or nonactions required to be made and given by such party obtained in connection with the consummation of the Merger and the other transactions contemplated by this Agreement; and (Cii) use reasonable best efforts necessary to obtain each approvalavoid or eliminate impediments under any Law that may be asserted by the FTC, consentthe DOJ, ratification, permission, waiver of authorization (including CFIUS or any authorization of a other Governmental Entity) required Entity or other Person with respect to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or and any of the other transactions transaction contemplated by this Agreement, including in each case so as to enable the SJW Regulatory Approvals and Closing to occur as promptly as practicable following the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision date of this AgreementAgreement and, SJW and in any event, prior to the SJW Subsidiaries shall be required Outside Date, and, if necessary, will participate in any Action in order to sell, divest or hold separate or otherwise take or commit to take defend against any action that limits its freedom, by any Governmental Entity or after private party to prevent or enjoin the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding any other provision of anything to the contrary in this Agreement, (i) neither SJW nor any none of its Affiliates the Company, Parent, Merger Sub or any of their respective Representatives Subsidiaries shall cooperate be required to (and the Company may not, without the prior written consent of Parent) become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any third party in seeking regulatory clearance requirement, condition, limitation, understanding, agreement or order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any SJW Takeover Proposal and (ii) neither CTWS nor any assets, business or portion of its Affiliates business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.Subsidiaries or Affiliates,
Appears in 1 contract
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement, including obtaining all necessary Governmental Entity and third party consents, approvals and authorizations.
(b) Without limiting the generality of Section 6.03(a), SJW Potlatch and the SJW Potlatch Board and CTWS Deltic and the CTWS Deltic Board, as the case may be, shall use their respective reasonable best efforts to (xi) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (yii) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Should Potlatch or any Potlatch Subsidiary own shares of Deltic Common Stock entitled to vote at the Deltic Stockholders Meeting, Potlatch shall, and shall cause its Subsidiaries to, vote all such shares of Deltic Common Stock in favor of the proposal to adopt this Agreement.
(d) Without limiting the generality of Section 6.03(a):the foregoing, each of Potlatch and Deltic shall:
(i) As promptly as reasonably practicable following the date of this Agreement, SJW and CTWS each shall file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, make or cause to be prepared made, in consultation and filed, cooperation with the other (A) as promptly as reasonably practicable after the date of this Agreement, all filingsand in any event within 20 days of this Agreement, submissions an appropriate filing of a Notification and registrations required to be made Report Form pursuant to the PURA HSR Act with respect to the transactions contemplated by this Agreement and (B) as promptly as practical after the MPUCdate of this Agreement, and all other applicationsnecessary registrations, declarations, notices, registrationsapplications and filings relating to the Merger with applicable Governmental Entities under any applicable antitrust, filingscompetition, reports foreign investment, trade regulation or similar Laws;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the effects set forth in Section 6.03(d);
(iii) give the other documents required reasonable prior notice of any such registration, declaration, notice, application or filing and, to be filed the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin this Section 6.03(d)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, notice, filing, application or communication;
(iv) use its reasonable best efforts to respond (including by providing any proposed written communication by such party requested information or documentation reasonably available) as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for information or documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters and not enter into any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made agreement with such Governmental Entities or submitted by or on behalf of any party in connection with proceedings under or relating other authorities not to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or consummate any of the other transactions contemplated by this Agreement, but subject to Section 6.03(e);
(v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in this Section 6.03(d)) without the other, (B) keep to the extent reasonably practicable, give the other party informed as to the status reasonable prior notice of any such legal proceeding meeting or threatconversation, and (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other parties with copies of all material respects with each other correspondence, filings and shall use communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger; and
(vi) use its reasonable best efforts to contest and resist any such action or proceeding avoid the entry of, and to have vacated, lifted, reversed or overturned overturned, any decree, Judgmentjudgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibitswould prevent, prevents restrain or restricts consummation of delay the Merger or the other transactions contemplated herebyClosing.
(ive) Each of SJW and CTWS shall: (A) reasonably cooperate with Notwithstanding anything to the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party contrary contained in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision provisions of this AgreementSection 6.03 and Section 6.09 shall not be construed to (i) require Potlatch or any Potlatch Subsidiary or Deltic or any Deltic Subsidiary or (ii) permit Deltic or any Deltic Subsidiary without the prior written consent of Potlatch, SJW and the SJW Subsidiaries shall be required to sell, divest undertake any efforts or hold separate or otherwise take or commit to take any action that limits its freedomif the taking of all such efforts or action, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have would or would reasonably be expected to have result (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) in a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a “Regulatory Material Adverse Effect. In addition” means any fact, neither CTWS nor any circumstance, effect, change, event or development that has a material adverse effect on the business, properties, financial condition or results of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation operations of the transactions contemplated by this AgreementCombined Company.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Potlatch Corp)
Required Actions. (a) Subject to Without limiting the terms and conditions specificity of any required actions under any provision of this Agreement, SJWincluding this Section 6.3 and Section 6.5, Merger Sub each Purchaser and CTWS Parent shall, and shall cause their respective Affiliates to use its respective their reasonable efforts to consummate and make effective as promptly as reasonably practicable the Sale, including using reasonable best efforts to take, or cause to be taken, in each case all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things actions necessary, proper or advisable under any applicable Laws to carry out provide any notification and obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity required to be obtained or made by any of Purchaser, Zayo or Parent or any of such respective Affiliates in connection with the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablePre-Closing Restructuring, the Merger Sale and the other transactions contemplated by this Agreement.
(b) Without limiting Each Purchaser, and Parent shall file or cause to be filed, any filings (including draft filings) or notifications under the generality CFIUS Statute, applicable Competition Laws and Communications Laws within the timeframes set out in Section 9.1(a) of Section 6.03(a)the Parent Disclosure Schedule; provided, SJW and however, the SJW Board and CTWS and parties may update or amend State PUC, CFIUS or Competition Law filings after such date to reflect updated Purchaser ownership information to the CTWS Boardextent that such update or amendment would not reasonably be expected to materially delay the Closing. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the CFIUS Statue, as any Competition Laws or Communications Laws, the case may be, parties shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreementcomply with such requests, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreementas applicable, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on possible and produce documents, responses to interrogatories or other information; including for the terms contemplated by this Agreement.
(c) Without limiting the generality avoidance of Section 6.03(a):
doubt, (i) As submitting, as promptly as reasonably practicable, to CFIUS, as promptly as practicable following after responding to any comments from CFIUS staff on the date of this Agreementdraft CFIUS Notice (or as soon as possible after CFIUS staff confirms it has no comments on the draft CFIUS Notice), SJW a CFIUS Notice with respect to the Transactions and CTWS each shall file supplying, as promptly as practicable, any additional information and documentary material that may be requested in connection with the CFIUS review process and (ii) in the event that the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of or the United States Department of Justice issue a so-called “second request” (the a “DOJSecond Request”) Notification in connection with the Parties’ HSR Act filing, each Purchaser and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each Parent shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order ready to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, certify substantial compliance as promptly as reasonably practicable after the date of this Agreementreceipt of such Second Request. Each Purchaser shall have the right to “pull-and-refile” (or cause its “ultimate parent entity,” as the term is defined in the HSR Act, all filingsto “pull-and-refile”) such party’s HSR Act filings pursuant to 16 C.F.R. 803.12 and enter into any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated hereby or by the Ancillary Agreements (each an “Extension”), submissions and registrations required to be made to in each case, without written consent of the PURA Parent.
(i) Parent and the MPUC, and Purchasers shall jointly control all other applications, notices, registrations, filings, reports and other documents required to be filed communications with any Governmental Entity relating to Competition Laws and Communications Laws, and jointly determine and direct the strategy and process by which the parties will obtain all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity relating to Competition Laws, the CFIUS Statute, and Communications Laws required in connection with respect this Agreement; provided that, notwithstanding the foregoing, in the event of any conflict or disagreement between the Purchasers and Parent (a “Disagreement”), the respective outside counsels of Parent and Purchasers (at the direction of the Purchaser Representative) will seek to resolve the Disagreement reasonably and in good faith. If the respective outside counsels are unable to reach a mutually satisfactory resolution of the Disagreement within two (2) calendar days after their first conferring regarding the applicable Disagreement, the Disagreement shall be referred to the Merger Purchaser Representative and the Chief Executive Officer of CCI, respectively. If the Purchaser Representative and Chief Executive Officer of CCI are unable to reach a mutually satisfactory resolution of the Disagreement within two (2) calendar days after their first conferring regarding the applicable Disagreement, Purchasers shall have the right to direct the matter that is the cause of any such Disagreement, acting reasonably and following consultation with the Parent and after considering in good faith all comments and advice of the Parent (and its counsel).
(ii) Without limiting the generality of Section 6.3(c)(i), prior to the Closing, to the extent not prohibited by applicable Law, Parent, on the one hand, and Purchasers, on the other hand, shall (A) work cooperatively with the other parties in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity, (B) promptly inform the other parties, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties of) any substantive communication from any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, 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 the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed written or substantive oral communication by or submission with or to any such party to Governmental Entity, and (D) not participate in any substantive meeting with any Governmental Entity 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 proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give , the other party prompt notice of the commencement Sale or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to the CFIUS Statute, any Competition Laws or Communications Laws in connection with this Agreement, the Sale 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 parties in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend and participate thereat.
(iii) Any disclosures, provisions of privileged or commercially sensitive information or rights to participate by one party to any other party under this Section 6.3 may be made on an outside counsel-only basis, to the extent such party deems it advisable and necessary and so designated it, and once so designated, shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchasers or Parent, as the case may be). Such designated disclosures or information may be redacted (A) to remove references concerning the valuation of the Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchasers, Zayo and their respective Affiliates, (B) keep the other party informed as necessary to the status of any such legal proceeding or threat, comply with contractual arrangements and (C) cooperate in all material respects with each other as necessary to address reasonable privilege or confidentiality concerns.
(d) Each Purchaser, and Parent shall, and shall cause their respective Affiliates to, and Zayo shall and shall cause its Subsidiaries to, each use their respective reasonable best efforts to contest and resist any resolve such action or proceeding and to have vacatedobjections, liftedif any, 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 or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested asserted by any Governmental Entity with respect to the other party to evidence or reflect Pre-Closing Restructuring, the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger Sale and the other transactions contemplated by this Agreement; Agreement under the CFIUS Statute, any Competition Laws and Communications Laws. In connection therewith, if any Action is instituted (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required or threatened to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with instituted) challenging the Merger Pre-Closing Restructuring, the Sale or any of the other transactions contemplated by this AgreementAgreement as violative of any Competition Laws or Communications Laws, including each Purchaser and its Subsidiaries shall at the SJW Regulatory Approvals and request of Parent, initiate and/or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend through litigation any claim asserted in any Action by any Governmental Entity or Person to prevent or enjoin the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) consummation of the SJW Disclosure Letter Pre-Closing Restructuring, the Closing or CTWS Material Contract identified on Section 6.03(c)(ivthe other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the CTWS Disclosure LetterPre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement prior to the Outside Date, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement resulting from any such Action.
(e) In furtherance of the undertakings in this Section 6.3, each of Purchaser, and Parent shall, and shall cause their respective Affiliates to, and Zayo shall and shall cause its Subsidiaries to, take all actions necessary to avoid or eliminate each and every impediment under the CFIUS Statute, any Competition Laws and Communications Laws so as to enable the Pre-Closing Restructuring and the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Zayo Purchaser, Zayo, and their respective Subsidiaries, (ii) amending any joint venture or other arrangement of the Transferred Entities, Zayo, Za▇▇ ▇▇▇▇▇▇▇▇▇ ▇nd their respective Subsidiaries, (iii) otherwise taking or committing to take actions, including but not limited to entering into any letter of assurance, national security agreement, or similar agreement with a Governmental Entity, that after the Closing would limit Purchasers’, the Transferred Entities or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Zayo, Zayo Purchaser and negotiating commercially reasonable definitive agreements their respective Subsidiaries, (iv) defending through litigation on the merits and through appeals any claim asserted in any court with respect to such parties the transactions contemplated by this Agreement, and (v) taking or committing to such material Contractstake any other structural or behavioral remedy or entering into any other arrangements with respect to the Transferred Entities, offering customary feesZayo, discounts Zayo Purchaser and their respective Subsidiaries in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewithOrder which would otherwise have the effect of preventing the consummation of the transactions contemplated by this Agreement by the Outside Date; provided, however, that SJW and CTWS are not required that, in no event shall Purchasers, Parent, Zayo or their respective Affiliates be obligated to take or agree or commit to take any such action unless that is not conditioned on the effectiveness Closing. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of the action is contingent upon the consummation of the Mergerdetermining whether a Business Material Adverse Effect has occurred or may occur.
(df) Notwithstanding any other provision anything to the contrary in this Agreement (with each of this Agreementthe following, SJW representing a “Purchaser Burdensome Condition”):
(i) Zayo Purchaser and the SJW Subsidiaries shall Zayo Purchaser Sponsors and their respective Affiliates (including with respect to Zayo Purchaser, Zayo and its Subsidiaries) will not be required to sell, divest take or hold separate or otherwise take agree or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In additionmaterial adverse effect on:
(A) the financial condition, neither SJW nor business, properties, assets, liabilities or results of operations of the Fiber Business taken as a whole, or of Zayo, Zayo Purchaser and their respective Subsidiaries, taken as a whole, measured, after giving effect to the Sale, as if Zayo, Zayo Purchaser and their respective Subsidiaries (including the Fiber Business) were a business of comparable size to the Fiber Business, and regardless of whether such actions are imposed on or affect Zayo Purchaser, Parent, the Fiber Business, or any of their respective Affiliates; or
(B) Zayo Purchaser’s or any Zayo Purchaser Sponsor’s or their respective Affiliates’ ability to (i) nominate its Affiliates shall board members or (ii) own, control, manage or operate the Fiber Business, taken as a whole, subsequent to Closing through the exercise of its voting or board representation rights or its right to receive information, other than, with respect to any remedy that may be under sought by CFIUS or any obligation Team Telecom Agency, (I) limitations and restrictions with respect to take access to, and separation of, customer, operational or technical data transmitted and/or stored by the Fiber Transferred Entities and related facilities access, including, in particular, limitations and restrictions on access to personnel, information and facilities relating to the goods and services the Parent or any action under this Section 6.03(dSubsidiary provides directly or indirectly to the governments of the United States, Canada or other jurisdictions, (II) if obligations to regularly report to, or engage with, Governmental Entities, including any requirement to engage or hire a third party auditor or monitor to audit/monitor any required compliance matters, and to grant Governmental Entities access to the FTC operations of the Transferred Entities, and (III) any and all restrictions and commitments of the type and level that Zayo Purchaser or the DOJ authorizes its staff investment funds advised or managed by one or more Affiliates of Zayo Purchaser that control Zayo Purchaser have agreed to seek a preliminary injunction in the past with respect to consents, authorizations and approvals required to be obtained from CFIUS or restraining order any Team Telecom Agency in connection with prior acquisition transactions that are similar to enjoin consummation of the transactions contemplated by this Agreement.
(eii) Notwithstanding any other provision of this Agreement, CTWS EQT Purchaser and the CTWS Subsidiaries shall EQT Purchaser Sponsor and their respective Affiliates will not be required to sell, divest take or hold separate or otherwise take agree or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In additionmaterial adverse effect on:
(A) the financial condition, neither CTWS nor any business, properties, assets, liabilities or results of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation operations of the transactions contemplated by this Agreement.
Small Cell Business taken as a whole, or EQT Purchaser and its Subsidiaries, taken as a whole, measured after giving effect to the Sale, as if EQT Purchaser and its Subsidiaries (fincluding the Small Cell Business) Notwithstanding any other provision were a business of this Agreementa comparable size to the Small Cell Business, (i) neither SJW nor any and regardless of its Affiliates whether such actions are imposed on or affect EQT Purchaser, Parent, the Small Cell Business or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and Affiliates; or
(B) EQT Purchaser’s or the EQT Purchaser Sponsor’s or their respective Affiliates’ ability to (i) nominate its board members or (ii) neither CTWS nor any own, control, manage or operate the Small Cell Business, taken as a whole, subsequent to Closing through the exercise of its Affiliates voting or board representation rights or its right to receive information, other than, with respect to any remedy that may be sought by CFIUS or any Team Telecom Agency, (I) limitations and restrictions with respect to access to, and separation of, customer, operational or technical data transmitted and/or stored by the Small Cell Transferred Entities and related facilities access, including, in particular, limitations and restrictions on access to personnel, information and facilities relating to the goods and services the Parent or any Subsidiary provides directly or indirectly to the governments of their respective Representatives shall cooperate with the United States, Canada or other jurisdictions, (II) obligations to regularly report to, or engage with, Governmental Entities and to grant Governmental Entities access to the operations of the Small Cell Transferred Entities, and (III) any third party in seeking regulatory clearance of any CTWS Takeover Proposal.and al
Appears in 1 contract
Required Actions. (a) Subject to Each of the terms and conditions of this Agreement, SJW, Merger Sub and CTWS parties shall use its their respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and reasonably appropriate to consummate and make effective, as soon as reasonably practicablepossible, the Merger and the other transactions contemplated by this Agreement.
(b) Without In connection with and without limiting the generality of Section 6.03(a), SJW Pine and the SJW Pine Board and CTWS Cedar and the CTWS Board, as the case may be, Cedar Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger Agreement or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without In connection with and without limiting the generality of Section 6.03(a):
(i) As ), promptly as reasonably practicable following the date execution and delivery by the parties of this Agreement, SJW Pine and CTWS each Cedar shall file enter into discussions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) below, SJW and CTWS each shall use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and SJW and CTWS shall each, as promptly as reasonably practicable, (A) supply the other with any information which may be required in order to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC Governmental Entities from whom Consents or the DOJ.
(ii) Each of SJW and CTWS shall use reasonable best efforts to prepare and file, or cause to be prepared and filed, as promptly as reasonably practicable after the date of this Agreement, all filings, submissions and registrations nonactions are required to be made to obtained in connection with the PURA and the MPUC, and all other applications, notices, registrations, filings, reports and other documents required to be filed with any Governmental Entity with respect to consummation of the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required Agreement in order to effectuate obtain all such filings, (B) supply any additional information which reasonably required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be required asserted by a such Governmental Entity Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 6.03(e), Pine and Cedar shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation by Pine, Cedar or any of their respective Subsidiaries of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised portion of the status business, properties or assets of matters relating to the completion of the transactions contemplated therebyPine, including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, as the case may be, Cedar or any of their respective Subsidiaries; provided, from however, that neither Cedar nor Pine shall be required pursuant to this Section 6.03(c) to commit to or effect any third party and/or any Governmental Entity with respect action that is not conditioned upon the consummation of the Merger. If the actions taken by Cedar and Pine pursuant to such transactions. No party the immediately preceding sentence do not result in the conditions set forth in Section 7.01(d), (e) and (f) being satisfied, then each of Cedar and Pine shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect jointly (to any such filings, investigation or other inquiry without using the extent practicable) use their reasonable best efforts to give initiate and/or participate in any proceedings, whether judicial or administrative, in order to (to the extent feasible and appropriatei) the other party prior notice of the meeting oppose or conversation and, unless prohibited defend against any action by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication by such party to any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made to prevent or submitted by or on behalf enjoin the consummation of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, and/or (Bii) keep the other party informed as to the status of any such legal proceeding or threat, and (C) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist any take such action or proceeding and as necessary to have vacated, lifted, reversed or overturned overturn any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts regulatory action by any Governmental Entity to block consummation of the Merger or the other transactions contemplated hereby.
(iv) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approvalentry of, consentor to have vacated, ratification, permission, waiver overturned or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letterterminated, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contractsappeal if necessary, offering customary feesany Legal Restraint resulting from any suit, discounts and action or other incentives to such parties on commercially reasonable terms and paying legal proceeding that would cause any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions condition set forth in Section 7.01(d), unless (e) or (f) not to be satisfied; provided that Cedar and Pine shall cooperate with one another in connection with, and shall jointly control, all proceedings related to the extent foregoing.
(d) In connection with and without limiting the generality of the foregoing, each of Cedar and Pine shall:
(i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, trade regulation or similar Laws;
(ii) (A) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, all applications required to be filed with the FCC (the “FCC Applications”) and any State Regulators (the “PSC Applications”) to effect the transfer of control of the Pine Licenses and/or Cedar Licenses, as necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, and use its reasonable best efforts to respond as promptly as practicable to any additional requests for information received from the FCC or any State Regulator by any party to an FCC Application or PSC Application and (B) use its reasonable best efforts to cure not later than the Effective Time any violations or defaults under any FCC Rules or rules of any State Regulator, except for such divestiture violations or other action woulddefaults that, individually or in the aggregate, have or would not reasonably be expected to have a Regulatory Material Adverse Effect. In additionSubstantial Detriment;
(iii) use its reasonable best efforts to furnish to the other all assistance, neither SJW nor cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c);
(iv) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 6.03(c)), and permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;
(v) use its Affiliates shall be reasonable best efforts to respond as promptly as reasonably practicable under the circumstances to any obligation inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to take consummate any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and
(vi) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, except that any materials concerning valuation of the other party may be redacted or withheld.
(e) Notwithstanding any other provision anything else contained herein but subject to the proviso of the second sentence of Section 6.03(c), the provisions of this AgreementSection 6.03 shall not be construed to require or permit Pine, CTWS and the CTWS Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedomCedar, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries from offering, taking, committing to or Affiliates to accepting any action, restrictions or limitations (“Actions”) of or on Pine, Cedar, or their respective Subsidiaries without the extent necessary to satisfy prior written consent of the conditions set forth in Section 7.01(d), unless and to the extent other party if such divestiture or other action wouldActions, individually or in the aggregate, have would or would reasonably be expected to have result in a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this AgreementSubstantial Detriment.
(f) Notwithstanding any other provision of anything else contained in this Agreement, (i) neither SJW Cedar nor any of its Affiliates or any of their respective Representatives shall cooperate with any third other party in seeking regulatory clearance of any SJW Cedar Takeover Proposal and and
(ii) neither CTWS Pine nor any of its Affiliates or any of their respective Representatives shall cooperate with any third other party in seeking regulatory clearance of any CTWS Pine Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Embarq CORP)
Required Actions. (a) Subject to the terms and conditions of this Agreement, SJW, Merger Sub and CTWS each of the parties shall use its respective reasonable best efforts to 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 Laws to carry out the intent and purposes of this Agreement and to consummate and make effective, as soon as reasonably practicablepossible, the Merger and Transactions, including the other transactions contemplated by this AgreementMerger.
(b) Without limiting the generality of Section 6.03(a), SJW Parent and the SJW Parent Board and CTWS the Company and the CTWS Company Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement.
(c) Without limiting Parent shall take reasonable best efforts to obtain the generality expiration or early termination of Section 6.03(a):
the HSR Act waiting period, including but not limited to (i) As promptly as reasonably practicable following jointly proposing with the date Company to negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license, or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of, any portion of the business, properties or assets of Parent, the Company or any of their respective Subsidiaries, (ii) terminating, modifying, or assigning existing relationships, contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, SJW (iii) changing or modifying any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise taking or committing to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement (collectively, a “Divestiture Action”); provided that Parent or any Parent Subsidiaries are not obligated to take any Divestiture Action or other action unless such action is expressly conditioned upon and CTWS each is only effective after the Closing of the Merger and such action would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Parent and its Subsidiaries from and after the Effective Time, taken as a whole. The Company shall file agree to take any Divestiture Action requested by Parent if such actions are only effective after the Effective Time and conditioned upon the consummation of the Merger. In the event that any Divestiture Action is proposed by or acceptable to a Governmental Entity, Parent shall have the right to determine the manner in which to implement the requirement of such Governmental Entity; provided, that in no event shall Parent or the Company (or any of their respective Subsidiaries or other Affiliates) be required to take or effect any such action that is not conditioned upon the consummation of the Merger; provided, further, that Parent shall consult with the United States Federal Trade Commission Company and give consideration to the views of the Company on all matters relating to any possible Divestiture Action.
(d) In addition, if any action or Proceeding is instituted (or threatened) challenging the “FTC”Merger or any other transaction contemplated by this Agreement as violating any antitrust, competition, foreign investment, trade regulation or similar Law or if any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Merger or any other transaction contemplated by this Agreement illegal or otherwise delay or prohibit the consummation of the Merger or any other transaction contemplated by this Agreement, Parent, its Affiliates and Subsidiaries and the Antitrust Division of the United States Department of Justice (the “DOJ”) Notification Company, its Affiliates and Report Forms relating to the transactions contemplated herein required by the HSR Act. Without limitation of Section 6.03(c)(ii) belowSubsidiaries, SJW and CTWS each shall use reasonable best efforts to obtain early termination (subject the limitations set forth in Section 6.03(c)) contest and defend any such Claim, cause of action, or Proceeding to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded, or terminated, any waiting period under decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) that prohibits, prevents, or restricts consummation of the HSR Act and SJW and CTWS Merger or any other transaction contemplated by this Agreement. Parent shall eachbe entitled to direct any such action or Proceeding described in this Section 6.03(d); provided, as promptly as reasonably practicablehowever, (A) supply that it shall afford the other with any information which may be required in order Company a reasonable opportunity to effectuate such filings and (B) supply any additional information which reasonably may be required by the FTC or the DOJparticipate therein.
(iie) Each Without limiting the generality of SJW the foregoing, each of Parent and CTWS shall use reasonable best efforts to prepare and file, the Company shall:
(i) make or cause to be prepared made, in consultation and filed, cooperation with the other and as promptly as reasonably practicable after the date of this Agreement, all filings, submissions an appropriate filing of a Notification and registrations required to be made Report Form pursuant to the PURA HSR Act relating to the Merger;
(ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in order to achieve the MPUCeffects set forth in Section 6.03(b);
(iii) give the other reasonable prior notice of any such registration, and all other applicationsdeclaration, noticesnotice, registrationsapplication or filing and, filingsto the extent reasonably practicable, reports and other documents required to be filed of any communication with any Governmental Entity regarding the Merger (including with respect to the Merger and the other transactions contemplated by this Agreement, including all SJW Regulatory Approvals and all CTWS Regulatory Approvals. Each of CTWS and SJW shall, as promptly as reasonably practicable, (A) supply the other with any information which reasonably may be required in order to effectuate such filings, (B) supply any additional information which reasonably may be required by a Governmental Entity of any jurisdiction and which the parties may reasonably deem appropriate, and (C) subject to applicable Law and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating actions referred to the completion of the transactions contemplated therebyin Section 6.03(c) and in this Section 6.03(e)), including promptly furnishing the other with copies of notices or other communications received by the SJW or CTWS, 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. No party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect to any such filings, investigation or other inquiry without using reasonable best efforts to give (to the extent feasible and appropriate) the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, a reasonable opportunity to attend or participate. Subject to applicable Law and the instructions of any Governmental Entity, the parties will consult and cooperate with one another and permit the other party or its counsel to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other in connection withwith any such registration, declaration, notice, filing, application or communication;
(iv) use its reasonable best efforts to respond as promptly as practicable under the circumstances to any proposed inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, foreign investment, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a “second request” under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to consummate any of the Transactions, except with the prior written communication consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed;
(v) unless prohibited by such party applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf respect of any party in connection with proceedings under or relating to the HSR Act, other antitrust Laws or any applicable state Laws in connection with the Merger and the other transactions contemplated by this Agreement.
(iii) Each of SJW and CTWS shall (A) give the other party prompt notice of the commencement or threat of commencement of any legal proceeding by or before any Governmental Entity including with respect to the Merger or any of the other transactions contemplated by actions referred to in Section 6.03(c) and in this AgreementSection 6.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation or a communication is initiated by a Governmental Entity without advance notice, keep the other party informed as to the status of any such legal proceeding or threatreasonably apprised with respect thereto, and (CD) cooperate in all material respects with each other and shall use their respective reasonable best efforts to contest and resist the filing of any such action or proceeding and to have vacatedsubstantive memoranda, liftedParent papers, reversed or overturned any decreefilings, Judgment, injunction correspondence or other orderwritten communications explaining or defending this Agreement and the Merger, whether temporary, preliminary articulating any regulatory or permanent, that is in effect competitive argument or responding to requests or objections made by any Governmental Entity and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated hereby.
(ivE) Each of SJW and CTWS shall: (A) reasonably cooperate with the other party, execute and deliver such further documents, certificates, agreements and instruments and take such other actions as may be reasonably requested by furnish the other party to evidence or reflect the transactions contemplated by this Agreement (including the execution and delivery with copies of all documentscorrespondence, certificatesfilings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, agreements on the one hand, and instruments reasonably necessary for all filings hereunder); (B) give all notices (if any) required to be made and given by such party in connection with the Merger and any Governmental Entity or members of any Governmental Entity’s staff, on the other transactions contemplated by this Agreement; (C) use reasonable best efforts to obtain each approvalhand, consent, ratification, permission, waiver of authorization (including any authorization of a Governmental Entity) required to be obtained from Governmental Entities pursuant to any applicable Law by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, including the SJW Regulatory Approvals and the CTWS Regulatory Approvals; and (D) obtain any approval, consent, ratification, permission, waiver or authorization required to be obtained from parties to any SJW Material Contract identified on Section 6.03(c)(iv) of the SJW Disclosure Letter or CTWS Material Contract identified on Section 6.03(c)(iv) of the CTWS Disclosure Letter, including by entering into and negotiating commercially reasonable definitive agreements with respect to such parties to such material Contracts, offering customary fees, discounts this Agreement and other incentives to such parties on commercially reasonable terms and paying any customary expenses incurred in connection therewith; provided, however, that SJW and CTWS are not required to take any such action unless the effectiveness of the action is contingent upon the consummation of the Merger.
(d) Notwithstanding any other provision of this Agreement, SJW and the SJW Subsidiaries shall be required to sell, divest or hold separate or otherwise take or commit to take any action that limits its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither SJW nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(d) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, CTWS provided that each party may designate information as “outside counsel only,” and the CTWS Subsidiaries shall be required receiving party agrees to sell, divest or hold separate or otherwise take or commit instruct its counsel not to take any action that limits disclose such information to its freedom, or after the Merger, the freedom of action of SJW or any of SJW’s Affiliates with respect to, or its ability to retain, SJW and SJW’s Subsidiaries, CTWS or CTWS’s Subsidiaries, or any of the respective businesses, product lines or assets of SJW, CTWS or any of their respective Subsidiaries or Affiliates to the extent necessary to satisfy the conditions set forth in Section 7.01(d), unless and to the extent such divestiture or other action would, individually or in the aggregate, have or reasonably be expected to have a Regulatory Material Adverse Effect. In addition, neither CTWS nor any of its Affiliates shall be under any obligation to take any action under this Section 6.03(e) if the FTC or the DOJ authorizes its staff to seek a preliminary injunction or restraining order to enjoin consummation of the transactions contemplated by this Agreementclient.
(f) Notwithstanding any other provision of this Agreement, (i) neither SJW nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any SJW Takeover Proposal and (ii) neither CTWS nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any CTWS Takeover Proposal.
Appears in 1 contract