Required Actions. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use its commercially reasonable 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 consummate and make effective, in the most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements. (b) In connection with and without limiting Section 5.05(a), 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 in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties. (c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents (d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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). (e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement. (f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participate.
Appears in 1 contract
Required Actions. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement, each of Parent, Acquirer and the parties hereto agrees to Company shall, and shall cause their respective Affiliates to, use its commercially their respective reasonable best efforts to take, or cause to be taken, all actions, actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under any Applicable Laws to consummate and make effective in the most expeditious manner possible the Transactions, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate the Transactions, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order, non-objection or approval of, or any exemption by, any Governmental Authority required or advisable to be obtained or made by Acquirer or the Company or any of their respective Affiliates in connection with the Transactions (including, for the avoidance of doubt, the Required Approvals), and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to assist fully carry out the purposes of this Agreement. Each of Parent and cooperate with the other parties in doingCompany shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable to consummate fulfill all conditions set forth in Article 9. Each of Parent, Acquirer and make effectivethe Company shall not, and shall cause its respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order, non-objection or approval of, or any exemption by, any Governmental Authority necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the most expeditious manner practicablefailure to satisfy, or any material delay in satisfying, any condition set forth in Article 9, including acquiring or agreeing to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agreeing to, soliciting, offering, proposing or recommending any of the Acquisition and foregoing, to the other transactions contemplated by this Agreement and extent it would reasonably be expected to materially delay the Ancillary Agreementsobtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order, non-objection or approval of, or any exemption by, any Governmental Authority necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any material delay in satisfying, any condition set forth in Article 9.
(b) In Prior to the Closing, to the extent not prohibited by Applicable Law, Acquirer and the Company shall each keep the other apprised of the status of matters relating to the completion of the Transactions, including the expiration or termination of the waiting period applicable to the Transactions under any applicable Antitrust Laws or any applicable Foreign Investment Laws and the receipt of any other applicable Required Approval and CFIUS Approval, and work cooperatively in connection with obtaining all required or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, Orders, non-objections or approvals of, or any exemptions by, any Governmental Authority. In that regard, each of Acquirer and without limiting Section 5.05(a), promptly following the execution and delivery by the parties of this Agreement, the parties Company shall (i) make promptly provide any information and assistance as the other Party may reasonably request with respect to all necessary registrationsnotices, declarations and submissions or filings made by or on behalf of such Party or any of its Affiliates with any Governmental Entities that are required Authority in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements Transactions, and (ii) promptly inform the other Parties, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party of) any material communication from or to any Governmental Authority regarding the Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed material written or oral communication or submission with or to any such Governmental Authority; provided that no Party shall be obligated to provide such information if such Party determines, in its reasonable judgment, that doing so may violate any applicable Law or jeopardize protection of attorney client privileges. No Party shall participate in any meeting with any Governmental Authority in connection with this Agreement or the Transactions, or with any other Person in connection with any Proceeding by a private Party relating to any Antitrust Laws, Foreign Investment Laws or Required Approvals in connection with this Agreement or the Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Authority, gives the other Party the opportunity to attend and participate thereat. Notwithstanding the foregoing, Acquirer and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive or otherwise commercially confidential material provided to the other Party under this Agreement as “outside counsel only.” Such designated materials provided by Acquirer to the Company or by the Company to Acquirer pursuant to this Section 8.01, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Acquirer or the Company, as the case may be); it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Company, (ii) as necessary to comply with Applicable Law, (iii) as necessary to address reasonable privilege concerns and (iv) as necessary to remove personal identifiable information. Acquirer and the Company shall jointly develop, determine and cooperate with one another with respect to the strategy, timing and form for obtaining all consents, waiting period expirations or terminations, waivers, non-objections or approvals that may be sought from any Governmental Authority pursuant to this Section 8.01; provided, however, that in the event of any disagreement between the Parties with respect to the matters described in the foregoing clause, the determination of Parent shall prevail.
(c) Parent, Acquirer and the Company shall file or cause to be filed, (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than twenty (20) Business Days, after the date of this Agreement and shall supply as promptly as practicable any additional information and documentary materials that may be required or advisable pursuant to the HSR Act and shall use their its respective commercially reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as practicable (ii) any required notifications in relation to the FCA Approvals and the CBI Approval as promptly as practicable, but in any event no later than twenty (20) Business Days, after the date of this Agreement, (iii) a draft of the CFIUS Notice as promptly as practicable, but in any event no later than thirty (30) Business Days, after the date of this Agreement, and shall file, as promptly as practicable after the resolution of all questions and comments received from CFIUS staff regarding such draft of the CFIUS Notice (or receipt of confirmation that CFIUS staff have no such questions or comments), the CFIUS Notice with CFIUS in accordance with the DPA and shall provide CFIUS with any additional information requested by CFIUS in connection with its review or investigation of the Transactions as promptly as practicable and in any event within the time required by the DPA (including pursuant to any extension permitted by CFIUS staff) and (iv) any other filings and/or notifications required or advisable in respect of any Required Approvals, whether in draft or final form (as required under Applicable Law), as promptly as practicable (but with respect to any filings required under the Competition Act (R.S.C., 1985, c. C-34, as amended) and the Irish Competition Act 2002 (as amended), in no event later than twenty (20) Business Days after the date of this Agreement), and shall supply as promptly as practicable any additional information and documentary materials that may be reasonably requested in respect of any Required Approvals and, subject to the terms and conditions of this Agreement, shall use its respective reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods or to obtain Consents under such Required Approvals.
(d) If any Proceeding is instituted (or threatened in writing to be taken instituted) challenging the Transactions as violative of any Applicable Law, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, Parent, Acquirer and the Company shall jointly (to the extent practicable) use their best efforts to initiate and/or participate in any Proceedings, whether judicial or administrative, in order to obtain all Consents and nonactions required (i) oppose or defend against any Proceeding by any Governmental Authority to be obtained from Governmental Entities in connection with prevent or enjoin the consummation of the Acquisition and Transactions and/or (ii) take such action as necessary to overturn any regulatory Proceeding by any Governmental Authority to block consummation of the other transactions contemplated Transactions, including by this Agreement and the Ancillary Agreements and defending any such Proceeding brought by any Governmental Authority 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 Transactions resulting from any such Proceeding. Notwithstanding anything to the contrary in this Agreement, (x) nothing in this Agreement shall require or be construed to require any Party to litigate in any court to seek to vacate or terminate or avoid the entry of any Order under the DPA and (y) in the event of a CFIUS Turndown, no Party shall have any further obligation to seek CFIUS Approval.
(e) Parent and Acquirer shall, and shall cause its Affiliates to, use its reasonable best efforts to take all actions necessary to avoid or eliminate each other and every impediment that may be asserted by such Governmental Entitiesunder Applicable Law, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreementsincluding any applicable Antitrust Laws or any applicable Foreign Investment Laws, in each case so as to enable the Closing to occur as soon promptly as reasonably possible. Notwithstanding practicable, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, product lines or assets of the Company, Parent and their respective Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Acquirer’s, the Company’s or their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, product lines or assets of the Company, Acquirer and their respective Affiliates (the actions referred to in clauses (i) and (ii), together with any other behavioral remedy requested or imposed by a Governmental Authority in order to achieve clearance under Applicable Law, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, a “Remedy Action”); provided that, notwithstanding anything to the contrary in this Agreement, nothing in this Agreement, including this Section 5.058.01 and the “reasonable best efforts” standard set forth herein, Purchaser shall in no event require or be required construed to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets require Acquirer or any of its Affiliates to propose, negotiate, commit to, accept or effect any Remedy Action that would result in a Burdensome Condition. Without the prior written consent of Parent or Acquirer (such consent or non-consent to be consistent with, and subject to, the obligations of Parent or Acquirer set forth in Section 8.01), the Company and its subsidiaries’ other businessesSubsidiaries will not take or agree to take any Remedy Action in connection with Applicable Laws, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business including any applicable Antitrust Laws or any applicable Foreign Investment Laws, regardless of its whether such action would constitute a Burdensome Condition. In addition, in no event shall the Parties be required to proffer, consent to or its subsidiaries’ other businesses, assets agree to or propertieseffect any Remedy Action that is not conditioned upon the closing of the Transactions.
(cf) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior Prior to the Closing and for a period of 12 months thereafterFirst Effective Time, each party Party shall, and shall cause its affiliates Affiliates to, use its commercially reasonable best efforts (at its own expense, except as otherwise expressly provided herein) to obtain, and to cooperate in obtaining, all consents material Consents from third parties and Persons (other than any Governmental Entities Authority) necessary or appropriate to permit permit, or otherwise triggered by, the transfer consummation of the Acquired Assets to, and the assumption of the Assumed Liabilities by, PurchaserTransactions; provided, however, that that, with respect to seeking or obtaining any such Consents, the parties Parties (and their respective Affiliates) shall not be required to pay or commit to pay undertake 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).
(e) Notwithstanding anything in this Agreement to the contraryextraordinary measures, nothing in this Section 5.05 shall require Purchaser to including (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilegecondition to Closing in its favor, (ii) the initiation or prosecution of any Proceedings, (iii) the expenditure of payment of funds in excess of normal and usual administrative and processing fees, if any, or (iv) the giving of any other consideration by the Parties (and their respective Affiliates), including any adjustment to the Merger Consideration. To Whether or not the extent Transactions are consummated, Acquirer shall be responsible for all filing fees under the HSR Act, the DPA and any other filings and/or notifications required in respect of any Required Approvals.
(g) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings of the Parties pursuant to this Section 8.01, the Company agrees to, as soon as practicable after the date hereof, prepare and cause the CMA to be filed with FINRA, and shall provide Acquirer with an opportunity to review and comment upon the CMA (which comments the Company shall consider in good faith) prior to the filing thereof with FINRA. Acquirer will, as promptly as reasonably practicable, neither Seller nor Purchaser shall independently participate supply to the Company all information requested by the Company as is reasonably necessary (i) for the Company to prepare the CMA and satisfy requests for additional information related thereto from FINRA and (ii) in a telephone call connection with any other transactions involving the Company or meeting with a Governmental Entity regarding its Subsidiaries requiring FINRA approval prior to the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participateClosing.
Appears in 1 contract
Sources: Merger Agreement (Aon PLC)
Required Actions. (a) Upon During the terms period between the date hereof and subject the earlier to occur of (x) Closing and (y) termination of this Agreement (the conditions set forth in this Agreement“Interim Period”), each of the parties hereto agrees to Purchaser, Seller and Parent shall use its 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 any applicable Laws to consummate and make effective, effective in the most an expeditious manner practicablethe Sale and the other transactions contemplated by this Agreement, including (i) the Acquisition 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 Ancillary AgreementsSale and the other transactions contemplated by this Agreement or otherwise become applicable to the transactions contemplated by this Agreement.
(b) In connection with During the Interim Period, to the extent not prohibited by applicable Law, Purchaser, Seller and without limiting Section 5.05(a), promptly following Parent shall each keep 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 in connection with the consummation other apprised of the Acquisition status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, during the consummation 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 consult with the Acquisition other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the Ancillary Agreements extent not prohibited by applicable Law, during the Interim Period, each party to this Agreement shall as promptly as practicable inform the other party to this Agreement, and if in order writing and to eliminate each the extent reasonably practicable (taking into consideration any timing requirements or filing deadlines), furnish the other impediment that may be asserted by such Governmental Entitiesparty with copies of (or, in each the case of oral communications, advise the other party of) any material communication from any Governmental Entity in connection with respect 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 Acquisition and Sale or the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party’s counsel as promptly as practicable party in connection with, any proposed written or oral communication, correspondence or submission with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participate.other such 55
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Excelerate Energy, Inc.)
Required Actions. (a) Upon the terms and subject Notwithstanding anything to the conditions contrary set forth in this Agreement, each of the parties hereto agrees to use its commercially reasonable efforts to take, Parent shall not be obligated under this Section 5.08 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 consummate and make effective, in the most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements.
(b) In connection with and without limiting Section 5.05(a), 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 in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case otherwise with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, to take or refrain from taking or to agree to it, its Affiliates or Subsidiaries or the Company or its Subsidiaries taking or refraining from taking any action (including any amendment, waiver or termination of any agreement, exhibit or schedule, including this Agreement and the Exhibits and Schedules to this Agreement) or agree to or accept to any limitation, action, restriction, condition or requirement which, individually or together with all other such limitations, actions, restrictions, conditions or requirements, would, or would reasonably be expected to, (i) impose any requirement on Parent or any of its Affiliates (including the Company or any of its Subsidiaries), or their respective shareholders or investors to make, or commit to make, other than as contemplated by the Summary Business Plan, any material capital contribution or enter into or issue any capital guarantee or keep well that would require any material contribution of capital or making a similar capital contribution undertaking, or impose, other than as contemplated by the Summary Business Plan, any non-di minimis adverse condition or non-di minimis adverse limitation on the Equity Investors or any of their investment funds, portfolio companies or other Affiliates (with respect to such conditions or limitations, other than Parent, the Company (after Closing) or any of their Subsidiaries), (ii) require any materially adverse deviation from the key terms of, or materially impair the aggregate economic benefits reasonably expected to be derived by Parent and its Affiliates from the execution of, the Summary Business Plan with respect to the Company and the Company Insurance Subsidiaries or (iii) use their respective commercially reasonable efforts to seek to terminate have a materially adverse effect on the business, results of operations of financial condition of the Company and its Subsidiaries, taken as a whole (any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable such requirement, individually or together with all other such information and reasonable assistance as may be reasonably required in order to effectuate requirements, a “Burdensome Condition”). Without the foregoing actions. Table prior written consent of Contents
Parent, the Company shall not (d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates Subsidiaries not to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to take any action or omission by Parent agree to the taking or Seller that refraining from any action or accept any limitation, action, restriction, condition or requirement that, individually or in the aggregate, would, or would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates expected to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participateBurdensome Condition.
Appears in 1 contract
Required Actions. (a) Upon Purchaser and Seller shall, and shall cause their respective Affiliates to, take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the terms most expeditious manner possible the Sale and subject to the conditions set forth in other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other applicable Competition Laws or with respect to any other required approval) 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, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of the parties hereto agrees to use its commercially reasonable efforts to Seller and Purchaser shall, and shall cause their respective Affiliates 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 consummate fulfill all conditions set forth in Article 8 and make effectivenot take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the most expeditious manner practicablefailure to satisfy, or any delay in satisfying, any condition set forth in Article 8. Without limiting the Acquisition foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agree to, solicit, offer, propose or recommend any of the foregoing, to the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article 8.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements.
(b) In work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and without limiting Section 5.05(a)5.02, to the extent not prohibited by applicable Law, each party shall promptly following consult with the execution and delivery other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by the parties of such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the parties Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.02, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any other applicable Competition Laws or any other required approvals in connection with this Agreement or the Sale, or make oral submissions at meetings (whether in person or via video conference) or in telephone or other conversations, unless it consults with Seller in advance and, to the extent not prohibited by such Governmental Entity, gives Seller the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.02, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 5.03, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) make all to remove references concerning the valuation of the Business or the Sale Process, (ii) as necessary registrationsto comply with contractual arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Purchaser and Seller shall file or cause to be filed any filings and/or notifications required in respect of any required approvals (other than under the HSR Act, declarations which have been filed prior to the date hereof) as promptly as practicable, and in the case of the filings with and/or notifications described on Schedule 8.01(a), in any event no later than five (5) Business Days after the date of this Agreement. In the event that the parties receive a request for additional information or documentary materials after a notification pursuant to the HSR Act or any other applicable Competition Laws, or a request for additional information from any Governmental Entities that are required Entity in connection with any other required approvals, the consummation parties shall use their respective best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, data, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any such investigatory or review process.
(d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use their respective best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Acquisition Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements and under any applicable Law. In connection therewith, if any Action is instituted (ii) use their respective commercially reasonable efforts to take all other actions required or threatened to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with instituted) challenging the consummation of the Acquisition and Sale or the other transactions contemplated by this Agreement as violative of any applicable Law, Purchaser and Seller shall jointly (to the Ancillary Agreements and extent practicable) use their best efforts to initiate and/or participate in any proceedings, whether judicial or administrative, in order to eliminate each other impediment that may be asserted (i) oppose or defend against any Action by such any Governmental Entities, in each case with respect Entity to prevent or enjoin the Acquisition and consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, Purchaser shall, and the Ancillary Agreementsshall cause its Affiliates to, in take all actions necessary to avoid or eliminate each case and every impediment under applicable Law, so as to enable the Closing to occur as soon promptly as reasonably possible. Notwithstanding anything practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to the contrary in this Section 5.05and effecting, Purchaser shall in no event be required to offer or agree to (A) dispose ofby consent decree, hold separate Order, or limit its operation otherwise, the sale, licensing, divestiture or disposition of any portion of the Business or of its or its subsidiaries’ other businesses, assets or propertiesproperties of the Transferred Entities, Purchaser and their respective Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, assets or properties of the Transferred Entities, Purchaser and their respective Affiliates. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.03(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, Seller shall not be obligated to take, or agree or commit to take, any action (A) that is not conditioned on the Closing or (B) limit its or its subsidiaries’ ability that relates in any way to acquire or holdthe Retained Businesses, or exercise full rights of ownership of, the Acquired Assets and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or its subsidiaries’ other businessesencumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, assets or propertiesand, (C) limit its or its subsidiaries’ ability to effectively control the Business or in any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b)case, Seller and Purchaser its Affiliates shall (i) as promptly as practicable, but in have no event later than five business days, following the execution and delivery of this Agreement, file direct or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act indirect obligation or other request for further information from any Governmental Authority Liability in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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 agreements or application fees).
(e) Notwithstanding anything in this Agreement to the contrarytransactions, nothing in this Section 5.05 shall require Purchaser to (i) consent to including any action or omission indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary AgreementPurchaser.
(f) Purchaser agrees to provide such security and Seller shall each keep the other informed in all material respectsassurances as to financial capability, resources and on a creditworthiness as may be reasonably timely basis, of any material communication received requested by such party from, or given by such party or its affiliates to, any Governmental Entity andor other third-party whose consent or approval is sought in connection with the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to the extent reasonably practicable, to consult with each other in advance of any meeting third party or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreementsin order to obtain any consent, provided that nothing in clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 5.05(f) shall be deemed 5.03, other than the fees of and payments to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend Seller’s legal and participateprofessional advisors.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (CURO Group Holdings Corp.)
Required Actions. (a) Upon the terms Purchaser, New CommerceOne and subject to the conditions set forth in this AgreementParent shall, each of the parties hereto agrees to and shall cause their Affiliates to, use its commercially reasonable best efforts to take, or cause to be taken, take 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 any applicable Laws to cause all conditions set forth in Article IX to be satisfied and to consummate and make effective, effective in the most expeditious manner practicablepossible the Sale, the Acquisition Mergers and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity required to be obtained or made by Purchaser, New CommerceOne or Parent or any of their respective Affiliates in connection with the Sale, the Mergers and the other transactions contemplated by this Agreement and the Ancillary Agreements.
(biii) In connection with and without limiting Section 5.05(a), promptly following the execution and delivery by of any additional instruments necessary to consummate the parties of this AgreementSale, the parties shall (i) make all necessary registrations, declarations and filings with Governmental Entities that are required in connection with the consummation of the Acquisition Mergers and the other transactions contemplated by this Agreement and to fully carry out the Ancillary Agreements purposes of this Agreement. Neither Purchaser, New CommerceOne nor Parent shall, and (ii) use their respective commercially reasonable efforts each shall cause its Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to take all other actions required to be taken delay the obtaining of, or result in order to obtain all Consents and nonactions required not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained from at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article IX, including acquiring or agreeing to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agreeing to, soliciting, offering, proposing or recommending any of the foregoing, to the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entities Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in connection the failure to satisfy, or any delay in satisfying, any condition set forth in Article IX. For avoidance of doubt, any action taken by New CommerceOne or Parent or their respective Affiliates pursuant to and consistent with the consummation terms of the Acquisition Merger Agreement shall not be deemed a breach of the foregoing.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser, New CommerceOne and Parent shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement, including the expiration or termination of the waiting period applicable to the Sale and the other transactions contemplated by this Agreement under the HSR Act or any other applicable Competition Laws, and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity relating to the completion of the Sale and the other transactions contemplated by this Agreement. In that regard, each party shall (i) promptly provide any information and assistance as the other party may reasonably request with respect to all notices, submissions or filings made by or on behalf of such party or any of its Affiliates with any Governmental Entity in connection with this Agreement, the Sale, the Mergers and the other transactions contemplated by this Agreement, and (ii) promptly inform the other party to this Agreement, and, if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from or to any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. Neither Purchaser, New CommerceOne nor Parent shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to the HSR Act or any other applicable Competition Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Notwithstanding the foregoing, Purchaser, New CommerceOne and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials provided by Purchaser to Parent or New CommerceOne, New CommerceOne to Purchaser or Parent or by Parent to Purchaser or New CommerceOne pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser, New CommerceOne or Parent, as the case may be); it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business or the Sale Process, (ii) as necessary to comply with contractual arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Purchaser, New CommerceOne and Parent shall file or cause to be filed, any required notifications under the HSR Act as promptly as practicable, but in any event no later than thirty days after the date of this Agreement, and will supply as promptly as practicable any additional information and documentary materials that may be required or advisable and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as practicable.
(d) Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use their respective reasonable best efforts (including agreeing to amendments to this Agreement or any Ancillary Agreements and in order Agreement) to eliminate each other impediment that resolve such objections, if any, as may be asserted by such any Governmental Entities, in each case Entity with respect to the Acquisition Sale, the Mergers and the other transactions contemplated by this Agreement under any applicable Law, including the HSR Act and any other applicable Competition Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging this Agreement, the Sale or the other transactions contemplated by this Agreement as violative of any applicable Law, including the HSR Act or any other applicable Competition Laws, Purchaser, New CommerceOne and Parent shall jointly (to the extent practicable) use their reasonable best efforts to initiate and participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity that would prevent, delay or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity the effect of which would be to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action. Notwithstanding the foregoing, nothing contained in this Section 6.3(d) shall be deemed to require (1) Parent or New CommerceOne or any of their respective Affiliates to take, and neither Parent nor New CommerceOne or any of their respective Affiliates shall be permitted (without the written consent of the other) to take, any action, or commit to take any action, that (A) would reasonably be expected to have a material adverse effect on New CommerceOne and its Subsidiaries, taken as a whole, after giving effect to the Mergers, the Conversion, the Distribution, the Sale and other transactions contemplated by this Agreement and the Ancillary AgreementsMerger Agreement, or (B) is not conditioned on the Closing or (2) Purchaser or any of its Affiliates to take any action, or commit to take any action, that (A) would reasonably be expected to have a Business Material Adverse Effect after giving effect to the Sale and other transactions contemplated by this Agreement, or (B) is not conditioned on the Closing.
(e) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party so as to cause the conditions in each case Article IX to be satisfied so as to enable the Closing to occur as soon promptly as reasonably possiblepracticable. Notwithstanding anything to Whether or not the contrary in this Section 5.05Sale is consummated, Purchaser shall in no event be required responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets third party or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required Entity in order to effectuate the foregoing actions. Table obtain any consent, finding of Contents
(d) In connection with and without limiting suitability, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 5.05(a)6.3, prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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)the fees of and payments to Parent’s legal and professional advisors.
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participate.
Appears in 1 contract
Required Actions. (a) Upon the terms and subject to the conditions set forth in this Agreement, each Each of the parties hereto agrees to shall use its commercially their respective 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 reasonably appropriate to consummate and make effective, in the most expeditious manner practicableas soon as reasonably possible, the Acquisition Transactions.
(b) In connection with Section 6.03(a), the Company and the Company Board and Parent and the Parent Board shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no Anti-Takeover Statute is or becomes applicable to this Agreement or the Transactions and (y) if any Anti-Takeover Statute becomes applicable to this Agreement or the Transactions, take all action reasonably appropriate to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement.
(c) In connection with 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 Section 6.03(a), the Company and Parent shall make all filings, including filing a Notification and Report form under the HSR Act, as promptly as practicable 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 and the Ancillary Agreements.
(b) In connection with and without limiting Section 5.05(a), 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 in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all such required Consents and or nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary AgreementsMerger, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything , and in any event no later than the End Date; provided, however, that neither Parent nor the Company shall be required pursuant to the contrary in this Section 5.056.03(d) to commit to any undertaking, Purchaser shall in no event be required to offer divestiture, license or agree to (A) dispose of, hold separate or limit its similar arrangement or conduct of business arrangement or to terminate or modify any relationships, rights or obligations or to do any other act that is not conditioned upon the consummation of the Merger or that would or would reasonably be expected to result in (i) a prohibition or limitation on the ownership, operation or freedom of action by the Company, Parent or any of their respective Subsidiaries of or with respect to any portion of the Business business, properties or assets of its the Company, Parent or its subsidiaries’ other businesses, assets or propertiesany of their respective Subsidiaries, (Bii) limit its the Company, Parent or its subsidiaries’ any of their respective Subsidiaries being compelled to dispose of or hold separate any portion of the business, properties or assets of the Company, Parent or any of their respective Subsidiaries, in each case as a result of the Merger, (iii) any prohibition or limitation on the ability of Parent to acquire or hold, or exercise full rights right of ownership of, any shares of the Acquired Assets capital stock of the Company or the Company Subsidiaries, including the right to vote, or (iv) any prohibition or limitation on Parent effectively controlling the business or operations of its the Company and the Company Subsidiaries, if any such actions set forth in clauses (i) through (iv) of this Section 6.03(d) would materially impair the expected benefits of the transaction (a “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 participate in any proceedings, whether judicial or its subsidiaries’ 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 businesseslegal proceeding brought by any Governmental Entity in order to avoid the entry of, assets or propertiesto 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 (Cd) limit its or its subsidiaries’ ability not to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or propertiesbe satisfied.
(ce) In connection with and without limiting Section 5.05(a) or Section 5.05(b)the generality of the foregoing, Seller each of Parent and Purchaser shall the Company shall:
(i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file make or cause to be filed made as promptly as reasonably practicable (and in any event no later than 15 Business Days following the date of this Agreement), in consultation and cooperation with the Federal Trade Commission and the United States Department of Justice the initial notification and report form other, all filings required under the HSR Act required for relating to the transactions contemplated hereby, Merger;
(ii) cooperate 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 responding promptly order to any Request for Additional Information and Documentary Material under achieve the HSR Act or other request for further information from any Governmental Authority effects set forth in respect of such filings and the transactions contemplated by this Agreement, Section 6.03(d);
(iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish give the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table prior notice of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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 registration, declaration, submission, notice or filing or application fees).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 6.03(d) and in this Section 6.03(e)), 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, submission, notice, filing or communication;
(iv) use its reasonable best efforts to respond as promptly as reasonably practicable to any 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 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 consummate any of the transactions contemplated by this Agreement and Agreement, except with the Ancillary Agreementsprior written consent of the other parties hereto, provided that nothing in this Section 5.05(fwhich consent shall not be unreasonably withheld or delayed; and
(v) shall be deemed unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently not participate in a telephone call or meeting attend any meeting, or engage in any conversation with a any Governmental Entity regarding in respect of the transactions contemplated hereby or Merger (including with respect to any of the matters described actions referred to in Section 6.03(d) and in this Section 5.05 6.03(e)) without using its commercially reasonable efforts the other, (B) to the extent reasonably practicable, give the other reasonable prior notification 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 permit the other to review and discuss in advance, and consider in good faith the views of the call or meeting andother in connection with the filing of such materials, unless prohibited by such 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 not reasonably practicablemembers of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, subject to redaction of competitively sensitive information, valuation material or information subject to attorney client privilege.
(f) Notwithstanding anything else contained herein but subject to the proviso of the first sentence of Section 6.03(d), the opportunity provisions of this Section 6.03 shall not be construed to attend 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, if such actions, restrictions or limitations, individually or in the aggregate, would or would reasonably be expected to result in a Detriment.
(g) The Company shall promptly (and participatein any event within 24 hours of becoming aware of such Company Default) notify Parent in writing upon the occurrence of any Company Default.
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
Required Actions. (a) Upon Purchaser and Seller shall, and shall cause their respective Affiliates to, take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the terms most expeditious manner possible the Sale and subject to the conditions set forth in other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other applicable Competition Laws or under the FPA or with respect to any other Required Approval) 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, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of the parties hereto agrees to use its commercially reasonable efforts to Seller and Purchaser shall, and shall cause their respective Affiliates 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 consummate fulfill all conditions set forth in Article VIII and make effectivenot take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the most expeditious manner practicablefailure to satisfy, or any delay in satisfying, any condition set forth in Article VIII. Without limiting the Acquisition foregoing, with the exception of actions or circumstances under FERC Docket No. EC21-74, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agree to, solicit, offer, propose or recommend any of the foregoing, to the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article VIII.
(b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity for the Ancillary AgreementsSale and the other transactions contemplated by this Agreement. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Each party shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any other applicable Competition Laws or the FPA or any other Required Approvals in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 5.3, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or 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 or the Sale Process, (ii) as necessary to comply with contractual arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(bc) In connection with Purchaser and without limiting Section 5.05(a)Seller shall file or cause to be filed (i) any required notifications under the HSR Act as promptly as practicable, promptly following but in any event no later than five (5) Business Days after the execution and delivery by the parties date of this Agreement, (ii) an application under Section 203 of the FPA as promptly as practicable, but in any event no later than fifteen (15) Business Days after the date of this Agreement, and (iii) except as otherwise provided herein, any filings and/or notifications required in respect of any other Required Approvals as promptly as practicable after the date of this Agreement. Seller shall file or cause to be filed any required filings with FERC to modify or re-approve the existing rate schedule for compensation for Reactive Supply and Voltage Control from Generation Sources Service (and shall use reasonable efforts, in good faith coordination with Purchaser pursuant to this Section 5.3(c), to make such filing no later than November 8, 2021, and in any event shall make such filing no later than November 15, 2021) (the “Reactive Update”). Within fifteen (15) days after the date of this Agreement, and every fifteen (15) days thereafter, Seller shall meet with Purchaser and its advisors and consultants to provide an update on the status of the preparation of the Reactive Update. During such meeting, Seller shall provide Purchaser and its advisors and consultants with copies of any existing drafts of the Reactive Update and any existing draft work papers associated with the Reactive Update. Seller shall include and incorporate, to the maximum extent possible, any edits and comments to such drafts provided by Purchaser or its advisors and consultants. Seller shall include Purchaser and its advisors and consultants in any communications with FERC regarding the Reactive Update and shall invite Purchaser and its advisors and consultants to any meeting with FERC regarding the Reactive Update. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the HSR Act or any other applicable Competition Laws, or a request for additional information from FERC or any other Governmental Entity in connection with any other Required Approvals, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any such investigatory or review process.
(id) make all necessary registrationsPurchaser and Seller shall, declarations and filings shall cause their respective Affiliates to, use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with Governmental Entities that are required in connection with respect to the consummation of the Acquisition Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements and under any applicable Law. In connection therewith, if any Action is instituted (ii) use their respective commercially reasonable efforts to take all other actions required or threatened to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with instituted) challenging the consummation of the Acquisition and Sale or the other transactions contemplated by this Agreement as violative of any applicable Law, Purchaser and Seller shall jointly (to the Ancillary Agreements and extent practicable) use their reasonable best efforts to initiate and/or participate in any proceedings, whether judicial or administrative, in order to eliminate each other impediment that may be asserted (i) oppose or defend against any Action by such any Governmental Entities, in each case with respect Entity to prevent or enjoin the Acquisition and consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, with the exception of actions or circumstances under FERC Docket No. EC21-74, Purchaser shall, and the Ancillary Agreementsshall cause its Affiliates to, in take all actions necessary to avoid or eliminate each case and every impediment under applicable Law, so as to enable the Closing to occur as soon promptly as reasonably possible. Notwithstanding anything practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, committing to the contrary in this Section 5.05and effecting, Purchaser shall in no event be required to offer or agree to (A) dispose ofby consent decree, hold separate Order, or limit its operation otherwise, the sale, licensing, divestiture or disposition of any portion of the Business or of its or its subsidiaries’ other businesses, assets or propertiesproperties of the Transferred Entities, Purchaser and their respective Affiliates, and (Bii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Affiliates’ freedom of action with respect to, or its or its subsidiaries’ their ability to acquire or holdretain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, assets or properties of ownership ofthe Transferred Entities, Purchaser and their respective Affiliates. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding the Acquired Assets foregoing or anything herein to the contrary, in no event shall Purchaser or any of its Affiliates, including any portfolio company in which a fund advised by ArcLight Capital Partners, LLC is invested (other than Purchaser or its subsidiaries’ other businessesSubsidiaries), assets or properties, be required to (C) limit its or its subsidiaries’ ability to effectively control the Business and nothing in this Section 5.3 shall be interpreted as requiring Purchaser or any of its or its subsidiaries’ other businesses, assets or properties.
Affiliates to) (cx) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to that is not conditioned upon the Closing and for a period of 12 months thereafteror (y) consent to any divestiture, each party shallhold separate order, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) to obtain, and to cooperate in obtaining, all consents from third parties and Governmental Entities necessary limitation on conduct or appropriate to permit the transfer of the Acquired Assets to, and the assumption of the Assumed Liabilities by, Purchaser; provided, however, that the parties shall not be required to pay other remedial action impacting any business or commit to pay any amount to (or incur any obligation in favor of) any person from whom any such consent may be required (Person other than filing or application fees).
(e) the Transferred Entities. Notwithstanding anything in this Agreement herein to the contrary, nothing in this Section 5.05 Seller shall require Purchaser not be obligated to (i) consent take, or agree or commit to take, any action or omission by Parent or Seller (A) that would be inconsistent with Section 5.01 absent such consent is not conditioned on the Closing or (iiB) agree that relates to amend or waive any provision of this Agreement the Retained Businesses, and in no event shall Seller or any Ancillary Agreementof its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or encumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements or transactions, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser.
(f) Purchaser agrees to use reasonable best efforts to provide such security and Seller shall each keep the other informed in all material respectsassurances as to financial capability, resources and on a creditworthiness as may be reasonably timely basis, of any material communication received requested by such party from, or given by such party or its affiliates to, any Governmental Entity andor other third party whose consent or approval is sought in connection with the transactions contemplated hereby; provided that the Purchaser’s obligations in respect of Seller Guarantees shall be governed by Section 5.9 and not by this Section 5.3(f); provided, further, that Purchaser shall have no obligation under this Section 5.3(f) in connection with an Excluded Liability. Whether or not the Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 5.3, other than the fees of and payments (x) to Seller’s legal and professional advisors and (y) arising out of any Excluded Liability.
(g) Notwithstanding anything to the contrary herein, if (i) any State Regulatory Condition is not satisfied by the Outside Date or (ii) a Substantial Detriment has been imposed by a Governmental Entity in connection with any State Regulatory Condition, then Seller and Purchaser shall, at Seller’s option, (x) (A) exclude from the transactions contemplated by this Agreement and the Ancillary Agreementseach Transferred Entity and/or Facility, provided as applicable, that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by has caused such Governmental Entity or not reasonably practicable, the opportunity to attend and participate.Substantial Detriment
Appears in 1 contract
Required Actions. (a) Upon Purchaser and Seller shall, and shall cause their respective Affiliates to, use reasonable best efforts to take all actions, and do, or cause to be done, all things reasonably necessary, proper or advisable under any applicable Laws to consummate and make effective as soon as reasonably practicable each Sale and the terms and subject to the conditions set forth in other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate such Sale and the other transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other applicable Competition Laws or under the FPA or with respect to any other Required Approval) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with such Sale and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate such Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of the parties hereto agrees to use its commercially reasonable efforts to Seller and Purchaser shall, and shall cause their respective Affiliates 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 reasonably necessary, proper or advisable to consummate fulfill all conditions set forth in Article VII and make effectivenot take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to any applicable Closing or would reasonably be expected to result in the most expeditious manner practicablefailure to satisfy, or any delay in satisfying, any condition set forth in Article VII. Without limiting the Acquisition foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agree to, solicit, offer, propose or recommend any of the foregoing, to the extent it would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to any applicable Closing or would reasonably be expected to result in the failure to satisfy, or any material delay in satisfying, any condition set forth in Article VII.
(b) Prior to each Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sales and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity or other Person. In that regard, prior to a Closing, subject to the Ancillary AgreementsConfidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the applicable Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity regarding such Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to such Sale or the other transactions contemplated by this Agreement, then such party shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Each of Purchaser and Seller shall not participate in any meeting with any Governmental Entity in connection with this Agreement or a Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any other applicable Competition Laws or the FPA or any other Required Approvals in connection with this Agreement or a Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with Seller or Purchaser (as applicable) in advance and, to the extent not prohibited by such Governmental Entity, gives Seller or Purchaser (as applicable) the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and a Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 5.3, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or 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 or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(bc) In connection with Purchaser and without limiting Section 5.05(a)Seller shall file or cause to be filed (i) any required notifications under the HSR Act as promptly as practicable, promptly following but in any event no later than three (3) Business Days after the execution and delivery by the parties date of this Agreement, (ii) an application under Section 203 of the FPA as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, and (iii) any filings and/or notifications required in respect of any other Required Approvals as promptly as practicable, but in any event no later than ten (10) Business Days after the date of this Agreement. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the HSR Act or any other applicable Competition Laws, or a request for additional information from FERC or any other Governmental Entity in connection with any other Required Approvals, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any such investigatory or review process.
(id) make all necessary registrationsPurchaser and Seller shall, declarations and filings shall cause their respective Affiliates to, use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with Governmental Entities that are required in connection with the consummation of the Acquisition respect to a Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements and under any applicable Law. In connection therewith, if any Action is instituted (ii) use their respective commercially reasonable efforts to take all other actions required or threatened to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and instituted) challenging a Sale or the other transactions contemplated by this Agreement as violative of any applicable Law, Purchaser and Seller shall jointly (to the Ancillary Agreements and extent practicable) use their reasonable best efforts to initiate and/or participate in any proceedings, whether judicial or administrative, in order to eliminate each other impediment that may be asserted (i) oppose or defend against any Action by such any Governmental Entities, in each case with respect Entity to prevent or enjoin the Acquisition and consummation of the Sale or the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, and/or (ii) cooperate in responding promptly take such action as necessary to overturn any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from regulatory Action by any Governmental Authority in respect Entity to block consummation of such filings and Sale or the other transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate including by defending any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require such Action brought by any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required Governmental Entity in order to effectuate avoid the foregoing actions. Table entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of Contentssuch Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(de) In connection with and without limiting Section 5.05(a)Notwithstanding any other provision of this Agreement, prior to the Closing and for a period of 12 months thereafter, each party Purchaser shall, and shall cause its affiliates Affiliates to, use take all actions necessary to avoid or eliminate each and every impediment under applicable Law, so as to enable each 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, licensing, divestiture or disposition of any businesses, assets or properties of the Transferred Entities, Purchaser and their respective Affiliates, and (ii) otherwise taking or committing to take actions that after the HSR Closing would limit Purchaser’s, the Transferred Entities’ or their respective Affiliates’ freedom of action with respect to, or its commercially reasonable efforts (at its own expenseor their ability to retain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, assets or properties of the Transferred Entities, Purchaser and their respective Affiliates. No actions taken pursuant to this Section 5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur, except as otherwise expressly provided herein) to obtain, and to cooperate in obtaining, all consents from third parties and Governmental Entities necessary or appropriate to permit the transfer extent caused by Seller’s breach of the Acquired Assets to, and the assumption of the Assumed Liabilities by, Purchaser; 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).
(e) its covenants hereunder. Notwithstanding anything in this Agreement herein to the contrary, nothing in this Section 5.05 Seller shall require Purchaser not be obligated to (i) consent take, or agree or commit to take, any action or omission by Parent or Seller (A) that would be inconsistent with Section 5.01 absent such consent is not conditioned on the applicable Closing or (iiB) agree that relates to amend or waive any provision of this Agreement the Retained Businesses, and in no event shall Seller or any Ancillary Agreementof its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or encumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements or transactions, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser.
(f) Purchaser agrees to provide such security and Seller shall each keep the other informed in all material respectsassurances as to financial capability, resources and on a creditworthiness as may be reasonably timely basis, of any material communication received requested by such party from, or given by such party or its affiliates to, any Governmental Entity andwhose consent or approval is sought in connection with the transactions contemplated hereby; provided, that Purchaser’s obligations in respect of Seller Guarantees shall be governed by Section 5.9 and not by this Section 5.3(f). Whether or not a Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any Governmental Entity in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 5.3, other than (i) the fees of and payments to Seller’s and (prior to a Closing applicable to a Transferred Entity) such Transferred Entity’s legal and professional advisors (including accountants, engineers and economists) and (ii) to the extent reasonably practicable, to consult with each other in advance otherwise constituting Losses arising from any breach of any meeting a representation or conference with any Governmental Entity regarding the transactions contemplated covenant by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participatehereunder.
Appears in 1 contract
Required Actions. (a) Upon the terms The Company and subject to the conditions set forth in this AgreementParent shall, each of the parties hereto agrees to use its commercially reasonable efforts to takeas promptly as possible, (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 (ii) to dothereafter use commercially reasonable efforts to obtain, or cause to be done, and to assist and cooperate with the other parties in doingobtained, all things necessaryconsents, proper authorizations, orders and approvals from all Governmental Authorities whether federal, state, local, or advisable to consummate and make effectiveforeign, in the most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements.
(b) In connection with and without limiting Section 5.05(a), 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 which may be required in connection with the consummation of the Acquisition and the other transactions contemplated by under this Agreement and the Ancillary Agreements other Transaction 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.
(iib) The Company and Parent shall use their respective commercially reasonable efforts to take give all other actions required to be taken in order to notices to, and obtain all Consents and nonactions required to be obtained from Governmental Entities consents from, all third parties that are expressly set forth in connection with the consummation Section 5.04 of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or propertiesDisclosure Schedules.
(c) In connection with Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and without limiting Section 5.05(a(b) or Section 5.05(b)above, Seller and Purchaser each of the parties hereto shall use commercially reasonable efforts to:
(i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding respond promptly to any Request for Additional Information inquiries and Documentary Material under the HSR Act or other request for further furnish any additional information from reasonably requested by any Governmental Authority in regarding antitrust or other matters with respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement or any Transaction Document;
(ii) resolve any objections that may be asserted by the applicable Governmental Authority as promptly as practicable and avoid the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that imposition of any party take order or the taking of any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicablerestrain, neither Seller nor Purchaser shall independently participate in a telephone call alter or meeting with a Governmental Entity regarding enjoin the transactions contemplated hereby by this Agreement or any Transaction Document; and
(iii) in the event any Governmental Order adversely affecting the ability of the matters described in parties to consummate the transactions contemplated by this Section 5.05 without using its commercially reasonable efforts Agreement or any Transaction Document has been issued, to give the other prior notification of the call or meeting and, unless prohibited by have such Governmental Entity Order vacated or not reasonably practicable, the opportunity to attend and participatelifted.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Required Actions. (a) Upon In furtherance and not in limitation of the terms foregoing, if and subject to the conditions set forth in this Agreementextent necessary to obtain clearance of the Transactions pursuant to the HSR Act and any other Antitrust Laws applicable to the Transactions, each of the parties hereto agrees to Parent and Purchaser will use its commercially reasonable 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 consummate and make effective, in the most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements.
(b) In connection with and without limiting Section 5.05(a), 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 in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable best efforts to take any and all other actions required steps and agree to be taken in order any and all regulatory remedies or commitments necessary to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to avoid or eliminate each and every impediment under the HSR Act and any other impediment applicable Antitrust Laws that may be asserted by such any Governmental Entities, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case Authority so as to enable the Closing Transactions to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) consummated as promptly as practicable, but and in no any event later than five business daysprior to the Termination Date, following including using reasonable best efforts to (i) offer, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, (A) the execution sale, divestiture, license or other disposition of any and delivery all of this Agreementthe capital stock or other equity or voting interests, file assets (whether tangible or cause to be filed with intangible), rights, products or businesses of Parent and Purchaser, on the Federal Trade Commission one hand, and the United States Department Company and its Subsidiaries, on the other hand (provided, that any of Justice the initial notification foregoing actions in this clause (A) shall be conditioned on the occurrence of the Closing); and report form (B) any other restrictions on the activities of Parent and Purchaser, on the one hand, and the Company and its Subsidiaries, on the other hand; and (ii) contest, defend and appeal any Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions under the HSR Act required for and other applicable Antitrust Laws. Without limiting any other obligations of the transactions contemplated herebyBuyer Parties in this Section 7.2, (ii) cooperate in responding promptly the Buyer Parties shall have the right to any Request for Additional Information control and Documentary Material direct the process, strategy and determinations by which the Parties hereto seek to avoid or eliminate impediments that may exist, arise or be asserted under the HSR Act or other request for further information from any Governmental Authority Antitrust Laws in respect of such filings and connection with the transactions transaction contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a Buyer Parties reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other the Company and its outside counsel and consider all suggestions in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participategood faith.
Appears in 1 contract
Required Actions. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementspecified herein, each of the parties hereto agrees to Buyer and ABI shall use its 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 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 eliminate each and every legal impediment that may be asserted by any Governmental Authority so as to enable the parties hereto to consummate and make effective, in the most expeditious manner as promptly as practicable, the Acquisition and the other transactions contemplated by hereby in accordance with the terms hereof, including making any amendments or modifications to this Agreement and to the Ancillary Agreements.
(b) In connection with and without limiting Section 5.05(a), promptly following the execution and delivery extent required by the parties of this Agreement, the parties shall (i) make all necessary registrations, declarations and filings with any Governmental Entities that are required Authority in connection with obtaining a required Consent; provided that, notwithstanding the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary Agreements, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding foregoing or anything to the contrary in this Section 5.05contained herein, Purchaser shall in no event be to the extent that, to obtain the Consent of any Governmental Authority, it is necessary or required to offer undertake one or agree 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 (Aor not) dispose of, hold separate in its sole discretion to such divestitures or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or propertiesremedies.
(c) In connection with Each of Buyer and without limiting Section 5.05(a) or Section 5.05(b), Seller ▇▇▇ will consult and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed cooperate with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, other (ii) cooperate including in responding promptly relation to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information parallel merger review process resulting from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreement.
(f) Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, any Governmental Entity and, to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary AgreementsABI Transaction) and (i) consider in good faith the views of the other, provided that nothing in this Section 5.05(f) shall be deemed to require that connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party take in connection with proceedings involving any action Governmental Authority relating to the Consents, except that would result in materials may be redacted to address reasonable privilege or confidentiality concerns and to prevent the waiver exchange of confidential information prohibited by applicable Law; (ii) promptly advise the other’s counsel of any attorney-client privilege. To written or material oral communication to or from any Governmental Authority with respect to the extent reasonably practicable, neither Seller nor Purchaser shall independently Consents; (iii) not participate in a telephone call any meeting or meeting discussion with a any Governmental Entity regarding Authority in respect of any Consent without first consulting with the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting other’s counsel and, unless prohibited by such Governmental Entity or not reasonably practicableAuthority, giving the other’s counsel the opportunity to attend attend; and participate(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 in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing.
Appears in 1 contract
Sources: Purchase Agreement
Required Actions. (a) Upon the terms Purchaser and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to Seller shall use its 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 any applicable Laws to consummate and make effective, effective in the most an expeditious manner practicablethe Sale and the other transactions contemplated by this Agreement, including (i) the Acquisition 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 all actions necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Ancillary AgreementsSale and the other transactions contemplated by this Agreement or otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and shall not (and shall cause each of their respective Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals 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 (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement.
(b) In connection with Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and without limiting Section 5.05(a), promptly following Seller shall each keep 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 in connection with the consummation other apprised of the Acquisition status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Ancillary Agreements Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any material communication from any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. 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 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 Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product.
(c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than fifteen (15) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, no later than ten (10) Business Days after the date of this Agreement, any other filings and/or notifications under applicable Regulatory Laws.
(d) Purchaser shall use their respective commercially its reasonable best efforts to take all other actions required resolve such objections, if any, as may be asserted by any Governmental Entity with respect to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition Sale and the other transactions contemplated by this Agreement and under any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions necessary to avoid or eliminate each and the Ancillary Agreements, in each case every impediment under any Regulatory Laws so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything in an expeditious manner (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to the contrary in this Section 5.05and effecting, Purchaser shall in no event be required to offer or agree to (A) dispose ofby consent decree, hold separate Order, or limit its operation otherwise, the sale, divestiture or disposition of any portion businesses, product lines or assets of the Business or of its or its subsidiaries’ other businessesTransferred Entities, assets or propertiesPurchaser and their respective Subsidiaries, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly otherwise taking or committing to any Request for Additional Information and Documentary Material under take actions, or agreeing to restrictions, that after the HSR Act Closing would limit Purchaser’s, the Transferred Entities’ or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts Subsidiaries’ freedom of action with respect to, or its or their ability to seek retain, any businesses, product lines or assets of the Transferred Entities, Purchaser and their respective Subsidiaries. No actions taken pursuant to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iiiSection 6.3(e) shall require any party to take any action referred to in the last sentence be considered for purposes of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as determining whether a Business Material Adverse Effect has occurred or may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser; 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).
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 shall require Purchaser to (i) consent to any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Ancillary Agreementoccur.
(f) Whether or not the Sale is consummated and, if the Sale is consummated, whether before, at or after the Closing, Purchaser shall be responsible for all fees and Seller shall each keep the payments (including filing fees and legal, economist and other informed in all material respects, and on a reasonably timely basis, of professional fees) to any material communication received by such party from, or given by such third party or its affiliates to, any Governmental Entity andto obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed 6.3, other than the fees of and payments to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend Seller’s legal and participateprofessional advisors.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (RBC Bearings INC)
Required Actions. (a) Upon the terms and subject to the conditions set forth in this AgreementAgreement and the Transaction Documents, each of the parties hereto agrees to use its commercially reasonable 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 consummate and make effective, in the most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement and the Ancillary AgreementsTransaction Documents.
(b) In connection with and without limiting Section 5.05(a5.06(a), 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 other transactions contemplated by this Agreement and the Ancillary Agreements Transaction Documents and (ii) use their respective commercially reasonable efforts to 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 Ancillary Agreements Transaction Documents and in order to eliminate each other impediment that may be asserted or obtained by such Governmental EntitiesEntities or private parties, in each case with respect to the Acquisition and the other transactions contemplated by this Agreement and the Ancillary AgreementsTransaction Documents, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.055.06, Purchaser neither Jupiter Parent nor any of its affiliates shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, properties or (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ 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) In connection with Lucky Parent and without limiting Section 5.05(a) or Section 5.05(b), each Seller and Purchaser shall (i) as promptly as practicable, but in take all action necessary to ensure that no event later than five business days, following the execution and delivery of state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, file any of the Transaction Documents or cause to be filed with the Federal Trade Commission and the United States Department any of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement or the Transaction Documents and (ii) if any state takeover statute or similar statute becomes applicable to this Agreement, (iii) use their respective commercially reasonable efforts any of the Transaction Documents or any of the transactions contemplated by this Agreement or the Transaction Documents, take all action necessary to seek to terminate any waiting periods under ensure that the HSR Act as soon as practicable (it being agreed that nothing in transactions contemplated by this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party Agreement and the other party’s counsel Transaction Documents may be consummated as promptly as practicable with all on the terms contemplated by this Agreement and the Transaction Documents and otherwise to minimize the effect of such information statute or regulation on this Agreement, any of the Transaction Documents and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contentstransactions contemplated hereby and thereby.
(d) In connection with and without limiting Section 5.05(a5.06(a), prior to the Closing and, to the extent Jupiter Parent and the Company waive Section 6.02(c), for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaserthe 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).
(e) Promptly, but in any event not more than two Business Days following the execution and delivery by the parties of this Agreement, (i) the Company, Elan Pharma International Limited and Lucky Collaboration Subsidiary shall provide to Wyeth the written notice contemplated by Section 13.7.1 of the Collaboration Agreement, in the forms attached hereto as Exhibits H-1 and H-2, as applicable, and (ii) the Company and Lucky Collaboration Subsidiary shall provide to Wyeth the written confirmation contemplated by Section 13.7.3 of the Collaboration Agreement, in the forms attached hereto as Exhibits I-1 and I-2, as applicable.
(f) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 5.06 shall require Purchaser 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) agree to amend or waive any provision of this Agreement or any Ancillary AgreementTransaction Document. Notwithstanding anything in this Agreement to the 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 Company that would be inconsistent with Section 5.02 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Transaction Document.
(fg) Purchaser To the extent permitted by Applicable Law and Seller the Collaboration Agreement, each of the parties hereto shall use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any required action under Section 5.06(b), including any filing or submission with any Governmental Entity in connection with the Acquisition or any of the other transactions contemplated by this Agreement and the Transaction Documents (including, to the extent permitted by Applicable Law, providing copies of all such documents to the other parties prior to making such filing or submission and considering all reasonable comments of the other parties suggested in connection therewith) and in connection with any suit, action, proceeding, investigation or other inquiry by or before any Governmental Entity or private party relating to the Acquisition or any of the other transactions contemplated by this Agreement and the Transaction Documents, and (ii) keep the other parties informed in all material respects, respects and on a reasonably timely basis, basis of any material communication (including meetings, telephonic conferences, presentations and written correspondence) received by such party from, or given by such party or its affiliates to, any Governmental Entity and, or private party relating to the extent reasonably practicable, to consult with each Acquisition or any of the other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary AgreementsTransaction Documents. Lucky Parent and the Sellers agree not to participate in any scheduled meeting or substantive discussion, provided that nothing either in this Section 5.05(f) shall be deemed person or by telephone, with any Governmental Entity in connection with the proposed transactions unless they consult with Jupiter Parent and the Company in advance and, to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless not prohibited by such Governmental Entity or not reasonably practicableEntity, gives Jupiter Parent and the Company the opportunity to attend and participate. Each of the parties hereto agrees not to extend or restart any waiting period under the HSR Act or any other Antitrust Laws or enter into any agreement with a Governmental Entity not to 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.
(h) Prior to the Closing, each of the parties hereto agrees to negotiate in good faith with the other parties hereto in order to enter into, or have a subsidiary enter into, a lease agreement, containing fair market terms and conditions, relating to the facilities set forth on Schedule 5.06(h) of the Seller Disclosure Letter (such facilities, the “Leased Facilities”).
Appears in 1 contract
Required Actions. (a) Upon the terms Purchaser and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to Seller shall use its commercially their respective 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 any applicable Laws to consummate and make effective, effective in the most an expeditious manner practicablethe Sale and the other transactions contemplated by this Agreement, including (i) the Acquisition 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 all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Ancillary AgreementsSale and the other transactions contemplated by this Agreement or that otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals 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 (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement.
(b) In connection with Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and without limiting Section 5.05(a), promptly following Seller shall each keep 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 in connection with the consummation other apprised of the Acquisition status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Ancillary Agreements Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product.
(c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws.
(d) Purchaser shall use their respective commercially its reasonable best efforts to take all other actions required resolve such objections, if any, as may be asserted by any Governmental Entity with respect to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with the consummation of the Acquisition Sale and the other transactions contemplated by this Agreement and under any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, in each case with respect to the Acquisition and Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action.
(e) Notwithstanding any other provision of this Agreement, Purchaser shall, and the Ancillary Agreementsshall cause its controlled Affiliates, in to use reasonable best efforts to take all actions necessary to avoid or eliminate each case and every impediment under any Regulatory Laws so as to enable the Closing to occur as soon promptly as reasonably possible. Notwithstanding anything practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to the contrary in this Section 5.05and effecting, Purchaser shall in no event be required to offer or agree to (A) dispose ofby consent decree, hold separate Order, or limit its operation otherwise, the sale, divestiture or disposition of any portion businesses, product lines or assets of the Business Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or its subsidiaries’ other their ability to retain, any businesses, product lines or assets of the Transferred Entities or properties, Purchaser (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties.
(c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall such actions contemplated in clauses (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents
(d) In connection with and without limiting Section 5.05(a), prior to the Closing and for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) 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, Purchaser“Remedial Actions”); provided, however, that and notwithstanding the parties shall not be required to pay foregoing 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).
(e) Notwithstanding anything in this Agreement to the contrarycontrary herein, nothing in this Section 5.05 Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to (i) consent commit to any action take or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend take any such Remedial Actions which would bind Purchaser or waive its Affiliates in respect of any provision matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of this Agreement determining whether a Business Material Adverse Effect has occurred or any Ancillary Agreementmay occur.
(f) Whether or not the Sale is consummated, Purchaser and Seller shall each keep be responsible for all filing fees, including filing fees under the other informed in all material respectsHSR Act, and on a reasonably timely basis, of any material communication received by such party from, or given by such party or its affiliates to, due to any Governmental Entity andto obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to the extent reasonably practicable, to consult with each other in advance of any meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, provided that nothing in this Section 5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participate6.3.
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