Required Actions. (a) Purchaser and Parent shall use reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Stock Purchase Agreement (PQ Group Holdings Inc.)

Required Actions. (a) Purchaser and Parent shall use their reasonable best efforts to 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 consummate and make effective in an expeditious manner the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, (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 any ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Antitrust Laws) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, and (iii) the execution and delivery of any additional instruments necessary to consummate the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall ~~use reasonable best efforts to~~ 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings. In connection therewith~~Transactions under any Laws that are designed or intended to prohibit, ~~if any Action is instituted challenging~~ restrict or regulate actions having the ~~Sale~~ purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade. (e) For the ~~other transactions contemplated by this Agreement as violative~~ avoidance of ~~any applicable Competition Laws~~doubt, 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 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 reasonably necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Antitrust Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. ~~In that regard~~ Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Purchaser ~~shall sell, dispose of, hold separate, or otherwise take or commit~~ be obligated to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions ~~required to be taken~~ pursuant to this Section ~~6.3(e) shall~~ 6.3 that would or would reasonably be ~~considered for purposes~~ expected to materially adversely impact the business or operations of ~~determining whether~~ the Purchaser and its Subsidiaries, taken as a ~~Business Material Adverse Effect has occurred~~ whole, or ~~may occur~~materially reduce Purchaser’s contemplated benefits from the Transactions. (f) 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 any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to Parent’s legal and professional advisors; provided that Parent shall pay one-half of the filing fees required in connection with notification under the HSR Act. (g) Purchaser covenants and agrees that, from the date of this Agreement through the earlier of the Closing or the termination of this Agreement, Purchaser shall not, and shall cause its Subsidiaries not to, directly or indirectly, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or Person or other business organization or division thereof, or dissolve, merge or consolidate with any other Person, if such transaction would reasonably be expected to prevent, delay or impede the consummation of the Transactions.

Appears in 1 contract

Sources: Stock and Asset Purchase Agreement (Peloton Interactive, Inc.)

Required Actions. ~~(a) Purchaser~~ In furtherance and ~~Parent shall use reasonable best efforts~~ not in limitation of the foregoing, if and to ~~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 consummate and make effective in an expeditious manner~~ the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions extent necessary to obtain (clearance of the Transactions pursuant to the HSR Act 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 any Competition Laws or any other Antitrust Laws applicable ~~Laws relating~~ to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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. AdditionallyTransactions, each of Parent and Purchaser ~~shall~~ will use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale~~ all steps 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 agree to any ~~such Governmental Entity~~ and all regulatory remedies 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably commitments necessary to avoid or eliminate each and every impediment under the HSR Act and any ~~Competition~~ other applicable Antitrust Laws that may be asserted by any Governmental Authority so as to enable the ~~Closing~~ Transactions to ~~occur~~ be consummated as promptly as ~~practicable (~~practicable, and in any event ~~no later than~~ prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to (i) ~~agreeing to~~offer, ~~committing~~ negotiate, commit to and ~~effecting~~effect, by consent decree, hold separate ~~Order,~~ order or otherwise, (A) the sale, ~~divestiture~~ divestiture, license or other disposition of any ~~businesses, product lines or assets~~ and all of the ~~Transferred Entities~~capital stock or other equity or voting interests, assets (whether tangible or intangible), rights, products or businesses of Parent and Purchaser, on the one hand, and ~~their respective~~ the Company and its Subsidiaries, on the other hand (provided, that any of the foregoing actions in this clause (A) shall be conditioned on the occurrence of the Closing); and (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) ~~otherwise taking~~ contest, defend and appeal any Legal Proceedings, whether judicial or ~~committing to take actions that after~~ administrative, challenging this Agreement or the ~~Closing would limit Purchaser’s~~consummation of the Transactions under the HSR Act and other applicable Antitrust Laws. Without limiting any other obligations of the Buyer Parties in this Section 7.2, the ~~Transferred Entities’~~ Buyer Parties shall have the right to control and direct the process, strategy and determinations by which the Parties hereto seek to avoid or ~~their respective Subsidiaries’ freedom of action~~ eliminate impediments that may exist, arise or be asserted under the HSR Act or other Antitrust Laws in connection with ~~respect to~~the transaction contemplated by this Agreement, or provided that the Buyer Parties reasonably consult with the Company and its ~~or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser,~~ outside counsel and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurconsider all suggestions in good faith. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Thorne Healthtech, Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall, and shall ~~use reasonable best efforts to take~~cause their respective Affiliates to, ~~or cause to be taken,~~ 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 an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ 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 ~~any Competition Laws~~ the HSR Act or any other applicable Competition Laws ~~relating~~ or with respect to ~~the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~any other required approval) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ 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 ~~Parent~~ Seller and Purchaser shall, and shall ~~use reasonable best efforts to~~ cause their respective Affiliates to, 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~~ set forth in Article 8 and ~~shall use reasonable best efforts~~ 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ~~Closing~~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. Without limiting the 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 ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.02, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ 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 ~~6.2~~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 ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person~~Entity. If any party to this Agreement or any ~~representative~~ 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~~ 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, on one hand, and Parent, on the other hand,~~ 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 ~~the other party~~ Seller in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the other party~~ 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~and any materials~~ provided by Purchaser to ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~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~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be ~~filed~~filed any filings and/or notifications required in respect of any required approvals (other than under the HSR Act, which have been filed prior to the date hereof) as promptly as practicable, ~~but~~ and in the case of the filings 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~~, notifications under~~ . In the event that the parties receive a request for additional information or documentary materials after a notification pursuant to the HSR ~~Act~~Act or any other applicable Competition Laws, or a request for additional information from any Governmental Entity in connection with any other required approvals, the 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 ~~Purchaser and Parent~~ counsel for both parties shall ~~file~~ closely cooperate during the entirety of any such investigatory or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable ~~Competition Laws~~Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its reasonable~~ their best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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 shall cause its Affiliates to, take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under ~~any Competition Laws~~ applicable Law, so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective ~~Subsidiaries~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates. ~~In that regard~~ All such efforts by Purchaser shall ~~sell~~be unconditional, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~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) that relates in any way to the Retained Businesses, and in no event shall Seller or any of 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 assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or 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 any third party or 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 ~~6.3~~5.03, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

Sources: Equity and Asset Purchase Agreement (CURO Group Holdings Corp.)

Required Actions. (a) ~~Purchaser and Parent~~ Prior to Closing, each Party shall use its reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) ~~the preparation~~ to prepare and ~~filing of~~ file all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~Merger, (ii) ~~taking all actions necessary~~ to promptly seek to obtain (and ~~cooperating~~ cooperate 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~~ Authority (which actions shall include furnishing all information required under ~~any Competition Laws~~ the HSR Act or any other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Antitrust Laws) required to be obtained or made by ~~Purchaser or Parent~~ Purchaser, Supervalu or any of their respective ~~Subsidiaries~~ Affiliates in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Merger, and (iii) ~~the execution~~ to execute and ~~delivery of~~ deliver any additional instruments necessary to consummate the ~~Sale and the other transactions contemplated by this Agreement~~ Merger and to fully carry out the purposes of this Agreement. Additionally, each ~~of Parent and Purchaser~~ Party shall use its reasonable best efforts to 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 use reasonable best efforts~~ to not to knowingly 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~~permission, clearance, ~~expiration~~ approval or ~~termination of a waiting period, authorization, Order or approval of, or~~ consent from any ~~exemption by, any~~ such Governmental ~~Entity~~ Authority necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, ~~to the extent not prohibited by applicable Law,~~ Purchaser and ~~Parent~~ Supervalu shall each keep the ~~other~~ others reasonably apprised of the status of matters relating to the completion of the ~~Sale and the other transactions contemplated by this Agreement~~ Merger 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~~Authority in connection with the Merger. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2, to the extent not prohibited by applicable Law~~5.2, each ~~of Parent and Purchaser~~ Party shall promptly consult with the other ~~party~~ Party to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Party (or ~~their~~ its counsel) copies of) all filings made by such ~~party~~ Party with any Governmental ~~Entity~~ Authority or any other information supplied by such ~~party~~ Party to, or correspondence with, a Governmental ~~Entity~~ Authority in connection with this ~~Agreement, the Sale~~ Agreement and the ~~other transactions contemplated by this Agreement~~Merger. ~~Subject~~ Prior to the Closing and subject to the Confidentiality Agreement and Section ~~6.2~~5.2, ~~to the extent not prohibited by applicable Law,~~ (i) each ~~party~~ Party to this Agreement shall promptly inform the other ~~party~~ Party to this Agreement, and if in writing, furnish the other ~~party~~ Party with copies of (or, in the case of oral communications, advise the other ~~party~~ Party orally of) any ~~material~~ communication from any Governmental ~~Entity or other such Person~~ Authority regarding the ~~Sale or the other transactions contemplated by this Agreement~~Merger, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ Party to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed written or oral communication or submission with ~~or to~~ any such Governmental ~~Entity or other such Person. If~~ Authority; (ii) if any ~~party~~ Party to this Agreement or any representative of such ~~party~~ Party receives a request for additional information or documentary material from any Governmental ~~Entity~~ Authority with respect to the ~~Sale or the other transactions contemplated by this Agreement~~Merger, then such ~~party~~ Party will make, or cause to be made, promptly and after consultation with the other ~~party~~ Party to this Agreement, an appropriate response in compliance with such request~~. Purchaser, on one hand, and Parent, on the other hand,~~ ; (iii) neither Party shall ~~not~~ participate in any meeting with any Governmental ~~Entity~~ Authority 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 Competition Laws in connection with this Agreement or the Sale,~~ Merger (or make oral submissions at meetings or in telephone or other conversations, ) unless it consults with the other ~~party~~ Party in advance and, to the extent not prohibited by such Governmental ~~Entity~~Authority, gives the other ~~party~~ Party the opportunity to attend and participate thereat; and (iv) 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 Authority with respect to this Agreement and the Merger, 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 Authority. Purchaser and ~~Parent~~ Supervalu may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Party under ~~this Agreement~~ Section 5.1 as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials and any materials provided by Purchaser to ~~Parent~~ Supervalu or by ~~Parent~~ Supervalu to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~Supervalu, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this ~~Agreement~~ Section 5.3(b) may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual ~~confidentiality arrangements and~~ arrangements, (iii) as necessary to address reasonable legal privilege ~~concerns~~concerns and (iv) to remove references to any information not related to the Business. (c) Purchaser and ~~Parent~~ Supervalu shall ~~file or cause to be filed~~file, as promptly as practicable, but in any event no later than ~~five~~ ten (510) Business Days after the date of this Agreement, notifications under the HSR Act, and in each case, shall request early termination of the waiting period, and Purchaser and ~~Parent~~ Supervalu shall ~~file or cause to be filed~~file, as ~~soon~~ promptly as ~~reasonably~~ practicable, any other filings and/or notifications under applicable Antitrust Laws, but in any ~~event~~ event, any initial draft notifications of any other filings shall be submitted no later than ~~eight~~ fifteen (8) 15) 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 Antitrust Laws, ~~those other filings and/or notifications set forth (or~~the Parties shall use their respective best efforts to certify compliance with such requests, ~~where~~ as applicable, ~~drafts thereof)~~ as promptly as possible and produce documents on ~~Section 6.3(c)~~ a rolling basis, and counsel for both Parties will closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) ~~Purchaser shall use its best efforts~~ Without limiting the generality of Purchaser’s undertaking pursuant to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition LawsSection 5.3(a), Purchaser ~~shall~~ agrees to 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 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 ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Antitrust Laws so as to enable the Closing to occur at such time as ~~promptly as practicable~~ Purchaser is otherwise required to effect the Closing (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the ~~Transferred~~ Save-A-Lot Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser~~’s, the Transferred Entities’~~ ’s or ~~their respective Subsidiaries~~its Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Transferred~~ Save-A-Lot Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s, Supervalu’s, Save-A-Lot’s or their respective Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the ~~Transferred Entities~~Save-A-Lot Entities or Purchaser. All such efforts by Purchaser shall be unconditional, ~~Purchaser, or any of their respective Subsidiaries. No~~ and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(d) shall be considered for purposes of determining whether a Business Material Adverse Effect has ~~occurred~~ occurred. Notwithstanding anything herein to the contrary, Supervalu shall not be obligated to take or ~~may occur~~agree or commit to take any action (A) that is not conditioned on the Closing or (B) that relates to any business, operations, assets, liabilities, product lines or legal entity not to be transferred pursuant to and in accordance with the terms and conditions of this Agreement. (fe) Whether or not the ~~Sale~~ Merger is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Authority in order to obtain any ~~consent~~consents, ~~clearance, expiration~~ approvals or ~~termination of a waiting period, authorization, Order or approval~~ waivers pursuant to this Section ~~6.3~~5.3, other than the fees of and payments to Supervalu’s legal and professional advisors.

Appears in 1 contract

Sources: Merger Agreement (Supervalu Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Parent~~ conditions of this Agreement, each of the parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things ~~necessary, proper or advisable under any applicable Laws~~ reasonably appropriate to consummate and make ~~effective in an expeditious manner~~ effective, as soon as reasonably possible, the ~~Sale~~ Merger and the other transactions contemplated by this Agreement. (b) In connection with and without limiting Section 6.03(a), ~~including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale~~ Valeant and the ~~other transactions~~ Valeant Board and Biovail and the Biovail Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement or any transaction contemplated by this Agreement, ~~(ii) taking~~ take all ~~actions necessary~~ action reasonably appropriate 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 any Competition Laws or any other applicable Laws relating to ensure that the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement. (c) In connection with and ~~to fully carry out~~ without limiting Section 6.03(a), promptly following the ~~purposes~~ execution and delivery by the parties of this Agreement~~. Additionally~~, ~~each of Parent~~ Valeant and ~~Purchaser~~ Biovail shall use their respective reasonable best efforts to ~~take,~~ enter into discussions with the Governmental Entities from whom Consents 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary nonactions are required to be obtained ~~at or prior to~~ in connection with the ~~Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised~~ consummation of the ~~status of matters relating to the completion of the Sale~~ Merger and the other transactions contemplated by this Agreement in order to obtain all such required Consents or nonactions from such Governmental Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and ~~work cooperatively~~ subject to the limitations set forth in ~~connection with obtaining all required consents~~Section 6.03(e), ~~clearances~~Valeant and Biovail shall use their respective reasonable best efforts to jointly propose, ~~expirations~~ negotiate, commit to and effect, by consent decree, hold separate order or ~~terminations of waiting periods~~otherwise, ~~authorizations~~the sale, ~~Orders~~ divestiture or ~~approvals~~ disposition of, or prohibition or limitation on the ownership or operation by Valeant, Biovail or any ~~exemptions by~~of their respective Subsidiaries of, any ~~Governmental Entity.~~ portion of the business, properties or assets of Valeant, Biovail or any of their respective Subsidiaries; provided, however, that neither Biovail nor Valeant shall be required pursuant to this Section 6.03(c) to propose, commit to or effect any action that is not conditioned upon the consummation of the Merger or that would reasonably be expected (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) to have a Combined Company Material Adverse Effect. (d) In ~~that regard~~connection with and without limiting the generality of the foregoing, ~~prior~~ each of Biovail and Valeant shall: (i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the ~~Closing, subject~~ HSR Act relating to the ~~Confidentiality Agreement~~ Merger, (B) if required, a notification pursuant to Section 114(1) of the Competition Act and an application for an advance ruling certificate pursuant to Section ~~6.2~~102 of the Competition Act relating to Merger and (C) all other necessary registrations, declarations, notices, applications and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, foreign investment, trade regulation or similar Laws; (ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c); (iii) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent ~~not prohibited by applicable Law~~reasonably practicable, ~~each~~ of ~~Parent and Purchaser shall promptly consult with the other party to provide~~ any ~~reasonably 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~~ communication with any Governmental Entity or regarding the Merger (including with respect to any ~~other information supplied by such party to, or correspondence with, a Governmental Entity~~ of the actions referred to in ~~connection with~~ Section 6.03(c) and in 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~~6.03(d)), 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, permit the other ~~party~~ to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other ~~party~~ in connection ~~with~~with any such registration, ~~any proposed written~~ declaration, notice, filing or ~~oral communication or submission with or~~ communication; (iv) respond as promptly as practicable under the circumstances to any ~~such~~ inquiries received from any Governmental Entity or any other ~~such Person. If any party to this Agreement~~ authority enforcing applicable antitrust, competition, foreign investment, trade regulation or ~~any representative of such party receives a request~~ similar Laws for additional information or ~~documentary material from~~ documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a “second request” under the HSR Act and a “Supplementary Information Request” under the Competition Act), and not extend any waiting period under the HSR Act or Competition Act or enter into any agreement with such Governmental ~~Entity with respect~~ Entities or other authorities not to consummate any of the ~~Sale or the other~~ transactions contemplated by this Agreement, ~~then~~ except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this Section 6.03(d)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party ~~will make~~reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or ~~cause~~ other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to ~~be made, promptly~~ requests or objections made by any Governmental Entity and ~~after consultation with~~ (E) furnish the other party ~~to this Agreement~~with copies of all correspondence, ~~an appropriate response in compliance with such request. Purchaser,~~ filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and ~~Parent~~any Governmental Entity or members of any Governmental Entity’s staff, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, as the case may be) or its legal counsel; it being understood that materials provided pursuant respect to this Agreement ~~may be redacted (i) to remove references concerning~~ and the valuation of the Business, (ii) as necessary to comply with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 ActionMerger. (e) Notwithstanding ~~any other provision~~ anything else contained herein, the provisions of this ~~Agreement, Purchaser~~ Section 6.03 shall ~~take all actions reasonably necessary~~ not be construed to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including~~ (i) ~~agreeing to, committing to and effecting, by consent decree, hold separate Order,~~ require Valeant or ~~otherwise, the sale, divestiture~~ any Valeant Subsidiary or ~~disposition of~~ Biovail or any ~~businesses, product lines~~ Biovail Subsidiary or ~~assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and~~ (ii) ~~otherwise taking~~ permit Valeant or ~~committing to take actions that after~~ any Valeant Subsidiary without the ~~Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom~~ prior written consent of ~~action with respect to~~Biovail, or ~~its~~ permit Biovail or ~~their ability~~ any Biovail Subsidiary without the prior written consent of Valeant, to ~~retain,~~ undertake any ~~businesses, product lines~~ efforts or ~~assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit~~ to take any action ~~that limits its freedom~~ if the taking of such efforts or action ~~with respect to~~would or would reasonably be expected to result (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) in a Combined Company Material Adverse Effect. (f) Notwithstanding anything else contained in this Agreement, ~~or Purchaser’s Subsidiaries’ ability to retain,~~ (i) neither Biovail nor any of ~~the businesses, product lines or assets of the Transferred Entities, Purchaser,~~ its Affiliates or any of their respective ~~Subsidiaries. No actions required~~ Representatives shall cooperate with any third party in seeking regulatory clearance of any Biovail Takeover Proposal and (ii) neither Valeant nor any of its Affiliates or any of their respective Representatives shall cooperate with any third party in seeking regulatory clearance of any Valeant Takeover Proposal. (g) Biovail shall give prompt notice to ~~be taken pursuant~~ Valeant, and Valeant shall give prompt notice to Biovail, of (i) any representation or warranty made by it contained in this ~~Section 6.3(e) shall be considered for purposes of determining whether a Business~~ Agreement that is qualified as to materiality or Biovail Material Adverse Effect ~~has occurred~~ or ~~may occur~~Valeant Material Adverse Effect, as applicable, becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Valeant Pharmaceuticals International)

Required Actions. (a) Purchaser and Parent shall ~~use~~ exercise reasonable best efforts ~~to take~~in taking, or ~~cause~~ causing to be taken, all actions, and dodoing, or ~~cause~~ causing to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) if required or advisable at the discretion of Purchaser in consultation with Parent, the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition ~~Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Laws) required to be obtained or made by Purchaser or Parent or any of their respective ~~Subsidiaries~~ controlled Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement,~~ Agreement and (iii) the negotiation, finalization, execution and delivery in good faith of any additional instruments reasonably necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, including the Ancillary Agreements. Additionally, each of Parent and Purchaser shall ~~use reasonable best efforts to~~ 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ClosingAgreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall, and shall cause their respective Representatives to, (i) subject to the terms and conditions of this Agreement including this Section 6.3, each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and (ii) 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, in each case, any Governmental ~~Entity~~Entity (if any). In that regard, prior to the Closing, subject to the terms and conditions of each of the Confidentiality Agreement, the Clean Team Agreement and this Agreement, including Section ~~6.2~~6.2 and this Section 6.3, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall, and shall cause their respective Representatives to, promptly consult with the other ~~party~~ Party to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Party (or their counsel) copies of) all filings made by such party with any Governmental Entity (if any) or any other information supplied by such ~~party~~ Party (if any) 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 terms and conditions of each of the Confidentiality Agreement, the Clean Team Agreement and this Agreement, including Section ~~6.2~~6.2 and this Section 6.3, to the extent not prohibited by applicable Law, each ~~party~~ Party to this Agreement shall, and shall cause their respective Representatives to, promptly inform the other ~~party~~ Party to this Agreement, and if in writing, furnish the other ~~party~~ Party with copies of (or, in the case of oral communications, advise the other ~~party~~ Party of) any ~~material~~ communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ Party to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity or other such Person. If any ~~party~~ Party to this Agreement or any ~~representative~~ Representative of such ~~party~~ 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~~ Party will make, or cause to be made, promptly and after consultation with the other ~~party~~ Party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand, and Parent, on the other hand, including their respective Representatives, 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 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~~ Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ Party the opportunity to attend and participate thereat. Purchaser and Parent may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Parent or by Parent 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 Parent, 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. Notwithstanding the foregoing, Purchaser and Parent shall jointly control the strategy and timing for obtaining any clearances required or advisable under any Competition Laws or FDI Laws (if any) in connection with the Sale (including, without limitation, the right to determine whether to engage with any Governmental Entity on a voluntary basis, whether to commit or to agree with any Governmental Entity to stay, toll or extend any applicable waiting period under any Competition Laws or FDI Laws). (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) 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 any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~6.3 (if any), other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Stock Purchase Agreement (On Semiconductor Corp)

Required Actions. (a) Seller and Purchaser will, and ~~Parent shall~~ will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. - 41 - (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, its Affiliates or the Business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business. (c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of the Parties’ covenants and agreements under Section 5.5(a) and Section 5.5(b), but subject to the limitations of Section 5.5(d), the Parties shall, and shall cause their respective Affiliates to, take, or cause to be taken, any and 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 an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 steps and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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~~ any and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity all undertakings solely with respect to the ~~Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale~~ Companies or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably Business necessary to avoid or eliminate each and every impediment ~~under~~ asserted by any ~~Competition Laws~~ Governmental Entity in connection with obtaining the Required Regulatory Approvals, so as to enable the Closing to occur as promptly as ~~practicable~~ practicable, including, solely with respect to the Companies or the Business, (~~and in~~ A) agreeing to conditions imposed by, or taking any ~~event no later than~~ action required by, any Governmental Entity, (B) defending through litigation on the ~~Outside Date)~~merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or - 42 - delay the consummation of the Closing, (iC) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate ~~Order,~~ order or otherwise, the sale, ~~divestiture~~ divestiture, licensing or disposition of any ~~businesses, product lines or~~ assets of the ~~Transferred Entities~~Companies or the Business, ~~Purchaser~~including entering into customary ancillary agreements relating to any such sale, ~~and their respective Subsidiaries~~divestiture, licensing or disposition, and (iiD) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that ~~limits its freedom~~ is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of ~~action~~ any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with ~~respect to~~or delaying the Closing, in each case as may be required in order to obtain the Required Regulatory Approvals or to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s ~~Subsidiaries’ ability~~ obligations under this Section 5.5. (d) Notwithstanding the foregoing or anything else in this Agreement to ~~retain~~the contrary: (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing; (ii) except as set forth in Section 5.5(d) of the Seller Disclosure Letter, Seller shall not be required to, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller or any of its Affiliates (other than the ~~businesses, product lines or assets of the Transferred Entities, Purchaser,~~ Companies) or any of their respective ~~Subsidiaries. No actions~~ businesses (other than the Business) (a “Seller Burdensome Condition”); and (iii) neither Purchaser nor Parent shall, including in connection with obtaining the Required Regulatory Approvals, (A) be required to ~~be taken pursuant~~ consent to ~~this Section 6.3(e) shall be considered for purposes~~ the imposition of ~~determining whether a Business Material Adverse Effect has occurred~~ any terms conditions or ~~may occur. (f) Whether~~ limitations on or ~~not the Sale is consummated~~with respect to Parent, Purchaser ~~shall~~ or any of their Affiliates (other than, from and after the Closing, the Companies) or any of their respective businesses (other than, from and after the Closing, the Business) or (B) be ~~responsible for all filing fees~~ required to ~~obtain~~ propose, negotiate, commit to or effect, by consent decree, hold separate orders, or otherwise regarding, the sale, divestiture, license or disposition, in whole or in part of, or suffer any ~~consent~~restriction on the operation of the assets, ~~clearance~~properties or businesses of Parent or its Affiliates (other than, ~~expiration or termination of~~ from and after the Closing, the Business) (the foregoing clause (iii), a ~~waiting period, authorization, Order or approval pursuant to this Section 6.3~~“Purchaser Burdensome Condition”).

Appears in 1 contract

Sources: Equity Interest Purchase Agreement

Required Actions. (a) ~~Purchaser~~ Upon the terms and ~~Parent shall~~ subject to the conditions set forth in this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper Table of Contents or advisable ~~under any applicable Laws~~ to consummate and make ~~effective~~ effective, in an the most expeditious manner practicable (and in any event no later than the ~~Sale~~ End Date), the Merger and the other transactions contemplated by this Agreement. (b) In connection with and without limiting the generality of Section 5.03(a) and subject to Section 5.03(e), ~~including~~ each of the parties agrees to use reasonable best efforts to accomplish, or cause to be accomplished, in the most expeditious manner practicable (and in any event no later than the End Date), the following: (i) the ~~preparation and filing~~ obtaining of all ~~forms~~actions or nonactions, ~~registrations~~ waivers, consents and ~~notices required to~~ approvals from Governmental Entities as may be ~~filed to consummate~~ necessary or advisable (including the ~~Sale~~ Governmental Entities in the jurisdictions set forth on Annex II) and the making and progressing of all registrations, declarations, notices and filings as may be necessary or advisable (including with the Governmental Entities in the jurisdictions set forth on Annex II) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, ~~(ii) taking all actions necessary~~ including seeking to ~~obtain (and cooperating with each~~ have any stay or temporary restraining order entered by any court or 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 any Competition Laws~~ vacated or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement, reversed and (~~iii~~iv) 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~~. (c) In connection with and without limiting the generality of Section 5.03(a) and subject to Section 5.03(e), each of the Company and Parent ~~and Purchaser shall use reasonable best efforts to take~~shall, 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closingand, to the extent ~~not prohibited by applicable Law~~applicable, ~~Purchaser~~ the Company shall cause its Subsidiaries and Parent shall ~~each keep~~ cause NV, PLC and their respective Subsidiaries to: (i) duly and promptly file (A) with the ~~other reasonably apprised~~ U.S. Federal Trade Commission and the Antitrust Division of the ~~status~~ Department of ~~matters relating~~ Justice the notification and report form (the “HSR Filing”) required under the HSR Act with respect to the ~~completion of the Sale and the other~~ transactions contemplated by this Agreement and ~~work cooperatively~~ (B) in ~~connection~~ any other jurisdiction where a registration, declaration, notice or filing may be necessary or advisable (including the jurisdictions set forth on Annex II) the appropriate registration, declaration, notice or filing, in each case as promptly as practicable and in substantial compliance with ~~obtaining all required consents, clearances, expirations or terminations~~ the requirements of ~~waiting periods, authorizations, Orders or approvals of, or~~ the HSR Act and any ~~exemptions by,~~ other applicable law; (ii) promptly provide any supplemental information requested by a Governmental Entity~~. In that regard~~, ~~prior to~~ including participating in meetings with officials thereof in the ~~Closing~~course of its review of this Agreement, ~~subject to~~ the ~~Confidentiality Agreement and Section 6.2, to~~ Merger or the ~~extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult~~ other transactions contemplated hereby; (iii) cooperate with the other party to ~~provide any reasonably~~ the extent necessary ~~information with respect~~ to ~~(and, in the case of correspondence, provide~~ assist the other party in the preparation of its HSR Filing and, if requested, to promptly amend or furnish additional information thereunder; (iv) cooperate with the other party to determine whether any filings are required to be made with, or ~~their counsel~~consents, waivers or approvals are required to be obtained from, any Governmental Entities or other third parties; (v) ~~copies of~~use its reasonable best efforts to furnish to the other party as promptly as practicable all assistance, cooperation and information required for any registration, declaration, notice or filing described in this Section 5.03(c) ~~all filings made by such~~ and in order to achieve the effects set forth in Section 5.03(b); (vi) give the other party reasonable prior notice of any registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity or regarding the Merger (including with respect to any ~~other information supplied by such party to, or correspondence with, a Governmental Entity~~ of the actions referred to in ~~connection with~~ Section 5.03(b) and in 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~~5.03(c)), 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, permit the other party to review and discuss in advance, and consider in good faith the views of of, and use reasonable best efforts to secure the participation of, the other party in connection ~~with~~with any such registration, declaration, notice, filing or communication; and (vii) unless prohibited by applicable law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, allow the other party or persons nominated by such other party (including such other Table of Contents party’s outside counsel) to participate in or attend any ~~proposed written~~ meeting, or ~~oral communication or submission~~ engage in any substantive conversation, with or any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 5.03(b) and in this Section 5.03(c)), (B) to the extent reasonably practicable, give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable law or by the applicable Governmental Entity from participating in or attending any such meeting, or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and its and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other ~~such Person. If any party~~ hand, with respect to this Agreement and the Merger. (d) The Company and its Board of Directors shall (1) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Merger or any ~~representative~~ of ~~such party receives a request for additional information~~ the other transactions contemplated by this Agreement and (2) if any state takeover statute or ~~documentary material from~~ similar statute becomes applicable to this Agreement, the Merger or any ~~Governmental Entity with respect to the Sale or~~ of 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 take all action necessary to ~~comply with contractual confidentiality arrangements~~ ensure that the Merger and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement may be consummated as violative of any applicable Competition 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 promptly as practicable on the ~~consummation of the Sale or the other transactions~~ terms contemplated by this Agreement ~~and/or (ii) take~~ and otherwise to minimize the effect of such ~~action as necessary to overturn any regulatory Action by any Governmental Entity to block consummation of~~ statute or regulation on this Agreement, the ~~Sale or~~ Merger and 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~~ anything else contained herein, the provisions of this ~~Agreement, Purchaser~~ Section 5.03 shall ~~take all actions reasonably necessary~~ not be construed to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including~~ (i) ~~agreeing to, committing to and effecting, by consent decree, hold separate Order,~~ require Parent or ~~otherwise, the sale, divestiture~~ any of its Affiliates or ~~disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and~~ (ii) ~~otherwise taking~~ permit the Company or ~~committing~~ any of its Affiliates without the prior written consent of Parent, to ~~take actions that after the Closing would limit Purchaser’s, the Transferred Entities’~~ undertake any efforts or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action if the taking of such efforts or action would or would reasonably be expected to result in a Substantial Detriment; provided, however, that ~~limits its freedom~~ reasonable best efforts of ~~action with respect to,~~ Parent under this Section 5.03 shall include agreeing to requirements to dispose of or ~~Purchaser’s Subsidiaries’ ability to retain, any~~ hold separate brands of the ~~businesses~~Company, ~~product lines or assets of the Transferred Entities, Purchaser,~~ Parent or any of their respective ~~Subsidiaries. No actions required~~ Affiliates and assets primarily related to ~~be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether~~ such brands that do not constitute a ~~Business Material Adverse Effect has occurred or may occur~~Substantial Detriment. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Alberto-Culver CO)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall use their respective reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement,~~ 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 ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Laws) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement, and (iii)~~ Agreement or that otherwise become applicable to 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 ~~Parent~~ Seller and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ not to (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 ~~consent, clearance, expiration~~ Regulatory Approvals required to be obtained or ~~termination of a waiting period, authorization, Order~~ made by Purchaser or ~~approval of~~Seller, or any ~~exemption by~~of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any ~~Governmental Entity necessary~~ of the conditions set forth in Article IX of this Agreement to fail to be ~~obtained at~~ satisfied or ~~prior to~~ prevent, delay or impede the ~~Closing~~consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of ~~Parent~~ Seller and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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~~ communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any ~~representative~~ 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~~Purchaser or its Representatives, on one hand, and ~~Parent~~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 ~~Competition~~ 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~Parent~~ Seller or by ~~Parent~~ 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 ~~and in-house counsel~~ to employees (other than in-house counsel), officers or directors of the ~~recipient~~ recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or ~~Parent~~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 ~~confidentiality arrangements~~ obligations and (iii) as necessary to ~~address reasonable privilege concerns~~protect privileged attorney-client communications or attorney work product. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (525) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as ~~soon~~ promptly as ~~reasonably~~ practicable, ~~but in~~ any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~applicable Competition~~ 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~~ illegal, or prohibits the consummation of 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 shall cause its controlled Affiliates, to use reasonable best efforts to take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Regulatory Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser~~, and their respective Subsidiaries~~, and (ii) otherwise taking or committing to take ~~actions~~ actions, or agreeing to restrictions, that after the Closing would limit ~~Purchaser’s,~~ the Transferred Entities’ ’, or ~~their respective Subsidiaries’~~ Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred ~~Entities~~Entities or Purchaser (such actions contemplated in clauses (i) and (ii), ~~Purchaser~~“Remedial Actions”); provided, however, and ~~their respective Subsidiaries. In that regard~~ notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser ~~shall sell~~or its Affiliates (or permit Seller, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities~~, Purchaser~~, or any of their respective ~~Subsidiaries~~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 commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions ~~required to be~~ taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Equity Purchase Agreement (Owens & Minor Inc/Va/)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall use reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement,~~ 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 ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Laws) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement, and (iii)~~ Agreement or otherwise become applicable to 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 ~~Parent~~ Seller and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ not to (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 ~~materially~~ (A) prevent, delay or impede 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~~ Regulatory Approvals required to be obtained at or ~~prior~~ 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 ~~Closing~~consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of ~~Parent~~ Seller and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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 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 ~~such~~ Person ~~regarding~~ 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 ~~except as provided in Section 6.20,~~ 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~~ communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any ~~representative~~ 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~~Purchaser or its Representatives, on one hand, and ~~Parent~~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 ~~Competition~~ 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~Parent~~ Seller or by ~~Parent~~ 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~~ recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or ~~Parent~~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 ~~confidentiality arrangements~~ obligations and (iii) as necessary to ~~address reasonable privilege concerns~~protect privileged attorney-client communications or attorney work product. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five~~ fifteen (515) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and ~~Parent~~ Seller shall file or cause to be filed, ~~as soon as reasonably practicable, but in any event~~ no later than ~~eight~~ ten (8) 10) Business Days after the date of this Agreement, ~~those~~ any other filings and/or notifications ~~set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~applicable Competition~~ 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~~ illegal, or prohibits the consummation of 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 ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Regulatory Laws so as to enable the Closing to occur ~~as promptly as practicable~~ in an expeditious manner (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective Subsidiaries, and (ii) otherwise taking or committing to take ~~actions~~ actions, or agreeing to restrictions, that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions ~~required to be~~ taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (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 payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

Sources: Stock and Asset Purchase Agreement (RBC Bearings INC)

Required Actions. (a) ~~Purchaser~~ Purchaser, on the one hand, and ~~Parent~~ each Seller, on the other hand, shall ~~use reasonable best efforts to~~ take, as promptly as practicable, 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition ~~Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Laws) required to be obtained or made by ~~Purchaser~~ Purchaser, any Seller or any other member of the Parent Group, or any of their respective Subsidiaries 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 Parent~~ Seller, on the one hand, and ~~Purchaser~~ Purchaser, on the other hand, shall ~~use reasonable best efforts to~~ take, as promptly as practicable, 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 ~~use reasonable best efforts~~ 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other ~~reasonably~~ 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to and provide any ~~reasonably~~ 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 6.2, to the extent not prohibited by applicable Law, each ~~party to this Agreement~~ of Purchaser and Parent shall promptly inform the other ~~party to this Agreement~~party, 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person. If any party to this Agreement or any ~~representative~~ 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, on the one hand, and Parent, 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 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. . (c) Whether or not the Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, accounting and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to any Seller’s legal and professional advisors. (d) Notwithstanding anything to the contrary in Article III or Article IV, Purchaser and Parent may, as each deems ~~in good faith to be~~ 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 Parent or by ~~Parent~~ any 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 (or equivalent) of the recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Purchaser, Parent or ~~Parent~~the applicable other 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns~~. (c) Purchaser~~ . Purchaser, Parent and ~~Parent shall file or cause to be filed~~Seller may establish, as ~~promptly as practicable~~they deem advisable and necessary, ~~but in any event no later than five (5) Business Days after the date of this Agreement, notifications~~ a clean team process to minimize potential risks under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 Laws 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 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 Actiondisseminating competitively sensitive material. (e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Osmotica Pharmaceuticals PLC)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Parent~~ conditions of this Agreement, each of DigitalGlobe and GeoEye shall, and shall cause its Subsidiaries to use all reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger and, subject to the conditions set forth in Article VII hereof, to consummate the transactions contemplated by this Agreement, including the Merger, as promptly as practicable and (ii) to obtain (and to cooperate with the other party to obtain) as promptly as practicable any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party which is required to be obtained by GeoEye or DigitalGlobe or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated by this Agreement, and to comply with the terms and conditions of any such consent, authorization, order or approval. (b) Subject to the terms and conditions of this Agreement, each of DigitalGlobe and GeoEye shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable ~~under any applicable Laws~~ to consummate and make ~~effective in an expeditious manner~~ effective, as soon as practicable after the ~~Sale and the other transactions contemplated by~~ date of this Agreement, the transactions contemplated hereby, including using all reasonable efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby and using all reasonable efforts to defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or seeking material damages. (c) In furtherance and not in limitation of the foregoing, (i) ~~the preparation and~~ each party hereto agrees to make an appropriate filing of ~~all forms, registrations~~ a Notification and ~~notices required~~ Report Form pursuant to ~~be filed~~ the HSR Act with respect to ~~consummate~~ the ~~Sale and the other~~ transactions contemplated hereby at the time directed by ~~this Agreement~~DigitalGlobe, ~~(ii) taking all actions necessary~~ and to ~~obtain (~~supply as promptly as practicable any additional information 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 any Competition Laws or any other applicable Laws relating documentary material that may be requested pursuant to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale HSR Act 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 Parent and Purchaser shall use its reasonable best efforts to take, or cause to be taken, all ~~actions~~other actions consistent with this Section 6.03 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable and (ii) each of GeoEye and DigitalGlobe shall each use its reasonable best efforts to (A) take all action reasonably necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated hereby and (B) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated hereby, take all action reasonable to enable the transactions contemplated hereby to be consummated as promptly as practicable on the terms contemplated by this Agreement and dootherwise minimize the effect of such Law on the transactions contemplated hereby. (d) At the time directed by DigitalGlobe, DigitalGlobe and GeoEye shall cooperate and join together in filing with the FCC applications for its consent to the transfer of control of the GeoEye FCC Authorizations to DigitalGlobe or its designated subsidiary or affiliate (“FCC Applications”). DigitalGlobe and GeoEye shall use their reasonable best efforts to diligently take, or cause to be ~~done~~taken, all ~~things necessary~~other actions consistent with this Section 6.03 to obtain promptly the requested written consent and approval of the FCC Applications by the FCC (“FCC Consent”). (e) At the time directed by DigitalGlobe, ~~proper~~ DigitalGlobe and GeoEye shall cooperate and join together in filing with NOAA or ~~advisable under any applicable Laws~~ the Department of Commerce, as applicable, an amendment to ~~fulfill~~ all ~~conditions precedent to~~ DigitalGlobe DoC Authorizations describing the transaction undertaken in this Agreement (together, the “DoC Application”). DigitalGlobe and GeoEye shall use their reasonable best efforts ~~not~~ to ~~take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of~~diligently take, 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~~ cause to be ~~obtained at~~ taken, all other actions consistent with this Section 6.03 to obtain promptly the requested written consent and approval of the DoC Application by NOAA or ~~prior to~~ the ~~Closing~~Department of Commerce (“DoC Consent”). (bf) ~~Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised~~ Each of the ~~status of matters relating~~ parties hereto shall use its reasonable best efforts to ~~the completion of the Sale and the~~ (i) cooperate in all respects with each other ~~transactions contemplated by this Agreement and work cooperatively~~ in connection with ~~obtaining all required consents, clearances, expirations~~ any filing with or ~~terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior~~ submission to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 transactions contemplated hereby and in connection with any investigation or other inquiry by or before, or communications with, a Governmental Entity (including the Department of Defense and the Office of the Director of National Intelligence) relating to the transactions contemplated hereby, including any governmental inquiry, investigation or proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any communication received by such party from, or given by such party to, the ~~Sale~~ Federal Trade Commission, the Antitrust Division of the Department of Justice, the Federal Communications Commission, the Department of Commerce or any other Governmental Entity (including the Department of Defense and the ~~other~~ Office of the Director of National Intelligence) and of any communication received or given by a private party in connection with any governmental inquiry, investigation or proceeding, in each case regarding any of the transactions contemplated ~~by this Agreement~~hereby. Subject to applicable Laws relating to the ~~Confidentiality Agreement~~ exchange of information, DigitalGlobe shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder; provided that each of the parties hereto shall have the right to review in advance, and ~~Section 6.2,~~ to the extent ~~not prohibited by~~ practicable each party will consult the other on and will take into account the reasonable inputs, comments and recommendations of the other party on, all the information relating to the other parties and their respective Subsidiaries, as the case may be, that appears in any filing made with, written materials submitted to, or oral presentations made to, any third party or any Governmental Entity in connection with any governmental inquiry, investigation or proceeding with respect to the transactions contemplated hereby. Subject to applicable ~~Law~~Laws relating to the exchange of information, each party shall have the right to ~~this Agreement~~ attend (to the extent permitted by the relevant Governmental Authority), and each party shall promptly and fully inform the other party about material conferences and meetings with regulators concerning the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Agreement, DigitalGlobe shall have the principal responsibility for devising and ~~if in writing~~implementing the strategy for obtaining any necessary antitrust, ~~furnish the~~ competition, communications or satellite-related clearances and other ~~party with copies~~ approvals of ~~(or, in the case of oral communications, advise the other party of) any material communication from any~~ Governmental ~~Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement~~Authorities, and ~~except as provided~~ shall take the lead in ~~Section 6.20, permit the other party to review~~ all meetings 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 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, on one hand, and Parent, on the other hand, shall not participate in any meeting communications with any Governmental Entity in connection therewith. Notwithstanding the cooperation of the parties required by this Section 6.03(f), in the event the parties do not agree with ~~this Agreement or the Sale, or with~~ respect to any ~~other Person~~ matter in connection with ~~any Action by a private party relating~~ the required clearances and approvals from Governmental Authorities, DigitalGlobe’s decision will control, provided that such decision does not interfere with GeoEye’s ability to ~~any Competition Laws in connection~~ control its operations prior to Closing, and otherwise is consistent with ~~this Agreement or~~ GeoEye’s obligations under the ~~Sale~~Law, ~~or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and,~~ including but not limited to the ~~extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend~~ Communications Act. DigitalGlobe and ~~participate thereat. Purchaser and Parent~~ GeoEye may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ under this ~~Agreement~~ Section 6.03(f) as “~~outside counsel only~~Antitrust Counsel Only Material.” Such ~~designated materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3,~~ Antitrust Counsel Only Material and the information contained ~~therein,~~ therein shall be given only to the outside ~~legal~~ antitrust counsel of the recipient and ~~shall~~ will not be disclosed by such outside counsel ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ GeoEye or ~~Parent~~DigitalGlobe, as the case may be) or its legal counsel~~; it being understood that~~ . Notwithstanding anything to the contrary in this Section 6.03(f), materials provided ~~pursuant~~ to ~~this Agreement~~ the other party or its outside counsel may be redacted ~~(i)~~ to remove references concerning the ~~valuation~~ valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of GeoEye, DigitalGlobe and their respective Subsidiaries. (g) Notwithstanding Sections 6.03(a), 6.03(b), 6.03(c), 6.03(d), 6.03(e) and 6.03(f) or any other provision of this Agreement to the contrary, in no event shall DigitalGlobe or its Subsidiaries or Affiliates be required to agree to (i) divest, hold separate or otherwise dispose of any material portion of its or GeoEye’s respective businesses, assets or Contracts or allow a third party to utilize a material amount of the ~~Business,~~ capacity on its or GeoEye’s satellites or (ii) take any other action that, individually or in the aggregate, would reasonably be expected to have a material adverse impact on the business, assets, Contracts or properties of DigitalGlobe and GeoEye, taken as ~~necessary~~ a whole. As long as the following actions of GeoEye are conditioned on Closing, DigitalGlobe may, if it so chooses, cause GeoEye to ~~comply with contractual confidentiality arrangements and~~ (~~iii~~i) ~~as necessary~~ divest, license, hold separate or otherwise dispose of, or allow a third party to ~~address reasonable privilege concerns~~utilize, any portion of its respective businesses, assets or Contracts or (ii) take any other action that would have an impact on the business, assets, Contracts or properties of GeoEye or its Subsidiaries. (ch) ~~Purchaser~~ Both DigitalGlobe and ~~Parent shall file or cause to be filed~~GeoEye shall, as promptly as practicable, ~~but in any event no later than five (5) Business Days after~~ and at least 60 days prior to the ~~date of this Agreement~~Effective Time, ~~notifications under the HSR Act, and Purchaser and Parent shall file or~~ cause to be ~~filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after~~ filed with the ~~date~~ United States Department of ~~this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on~~ State’s Directorate of Defense Trade Controls the notices required under Section ~~6.3(c~~122.4(b) of the ~~Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any~~International Traffic in Arms Regulations, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 Actionamended. (e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (GeoEye, Inc.)

Required Actions. (a) Subject to the terms and conditions of this Agreement, Purchaser and Parent shall use reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition ~~Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Laws) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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, subject to the terms and conditions of this Agreement, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and, subject to the terms and conditions of this Agreement, 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 Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, ~~as soon as reasonably practicable, but in any event~~ no later than ~~eight~~ ten (8) 10) Business Days after the date of this Agreement, ~~those~~ any other filings and/or notifications ~~set forth~~ (~~or,~~ or where applicable, drafts thereof) ~~on Section 6.3(c)~~ required under applicable Competition Laws provided that Parent supplies the information required to be provided by it for the filings reasonably in advance of the ~~Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~filing deadline. (d) Subject to the terms and conditions of this Agreement, Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Stock Purchase Agreement (PQ Group Holdings Inc.)

Required Actions. (a) Purchaser Guarantor, Purchaser and ~~Parent~~ the Sellers shall ~~use reasonable best efforts to~~ 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 consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking and causing their respective Affiliates to take 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 ~~any Competition Laws~~ the HSR Act or any other applicable ~~Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Competition Laws) required to be obtained or made by Purchaser or ~~Parent~~ any of the Sellers or any of their respective ~~Subsidiaries~~ applicable 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 Parent~~ the Sellers, Purchaser Guarantor and Purchaser shall ~~use reasonable best efforts to~~ 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 so as to enable the Closing to occur as promptly as possible and shall ~~use reasonable best efforts~~ not take, and shall cause their respective Affiliates not to ~~take~~ 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 the Closing. (b) ~~Prior~~ Without limiting the parties’ other obligations in this Section 5.3, the parties hereto shall jointly develop, consult and cooperate with one another regarding, the strategy for obtaining any necessary approval of, or responding to any request from, inquiry by, or investigation by (including directing the ~~Closing~~timing, nature and substance of all such responses), any Governmental Entity in connection with this Agreement and the transactions contemplated hereby, including determining the timing and content of any registrations, filings, agreements, forms, notices, petitions, statements, submissions of information, applications and other documents, communications and correspondence contemplated by, made in accordance with, or subject to this Section 5.3. Purchaser shall have the final authority to direct and implement the regulatory strategy; provided, however, that Purchaser will consult with Parent and consider in good faith the views of Parent in advance of making any decisions with respect to such strategy and provided, further, that Purchaser shall not, without Parent’s prior written consent, take any actions that are reasonably likely to cause any Governmental Entity to refer the transactions contemplated by this Agreement for an in-depth investigation. Each party hereto, to the extent not prohibited by applicable Law, ~~Purchaser and Parent~~ shall ~~each~~ keep the other ~~reasonably~~ 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party hereto shall promptly consult with the other ~~party~~ parties to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ parties (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 ~~6.2~~5.2, to the extent not prohibited by applicable Law, each party to this ~~Agreement~~ Agreement, as applicable, shall promptly inform the other ~~party to this Agreement~~party, and if in writing, furnish the other ~~party~~ parties to this Agreement with copies of (or, in the case of oral communications, advise the other party of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person~~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 will make, or cause to be made, promptly and after consultation with the other ~~party~~ parties to this Agreement, ~~an appropriate~~ a complete response in compliance with such request. ~~Purchaser, on one hand, and Parent, on the other hand,~~ No 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 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 reasonably consults with the other ~~party~~ parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ parties 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. Purchaser and Parent may, as each deems ~~in good faith to be~~ 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 Parent or by Parent to Purchaser pursuant to this Section 6.3~~materials, and the information contained therein, shall be given only to the outside legal counsel of the recipient involved in the Sale and the other transactions contemplated by this Agreement and shall not be disclosed by such outside counsel ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five~~ ten (510) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file ~~or cause to be filed, as soon as reasonably practicable, but in~~ any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth~~ under applicable Competition Laws, as promptly as reasonably possible. Notwithstanding anything to the contrary in this Agreement, no party shall make any filings and/or notifications under applicable Competition Laws in any jurisdiction, other than a Required Jurisdiction, unless Purchaser and Parent mutually agree that such filing and/or notification is necessary or advisable (orand neither Purchaser nor Parent shall unreasonably refuse to agree). In the event that the parties receive any request for information or documentary material from any Governmental Entity, ~~where applicable, drafts thereof) on Section 6.3(c) of~~ including a request for additional information or documentary materials pursuant to the ~~Purchaser Disclosure Schedule (collectively~~HSR Act or any other applicable Competition Laws, the ~~“Antitrust~~ parties shall comply with such requests as promptly as reasonably possible and ~~Foreign Investment Filings”)~~produce documents, responses to interrogatories, witnesses for deposition, or other information on a rolling basis, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser ~~shall use its best efforts to~~ and Parent shall, by any means other than termination of this Agreement, promptly resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, or any other United States federal or state or foreign or supranational Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade (collectively, “Competition Laws”). In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of the HSR Act or any other applicable Competition Laws, Purchaser and Parent shall ~~use its reasonable best efforts to~~ jointly initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, to (i) initiate, 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 consummation of the Sale or the other transactions contemplated by this Agreement, in each case to the extent necessary so as to enable the Closing to occur as promptly as possible 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 ~~reasonably~~ necessary to avoid or eliminate each and every impediment under the HSR Act or any other applicable Competition Laws so as to enable the Closing to occur as promptly as ~~practicable~~ possible (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred ~~Entities’~~ Entities or their respective ~~Subsidiaries~~Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Affiliates, and Parent shall provide reasonable cooperation to Purchaser, consistent with the strategies determined under Section 5.3(b), to facilitate Purchaser taking such actions. In that regard Purchaser shall, and, if requested in writing by Purchaser, Parent shall (or, subject to Purchaser’s obligations under this Agreement, including this Section 5.3, if not so requested by Purchaser, Parent shall not), agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s ~~Subsidiaries~~or its Affiliates’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of Purchaser’s Affiliates; provided, however, that the obligations of Parent and its Affiliates shall be subject to the limitations set forth in the first two sentences of the last paragraph of Section 5.17(d) (which shall apply mutatis mutandis) and provided, further, that Parent and its Affiliates shall not be required to agree to retain any or all of the Transferred Entities or of the Business after the Closing. Purchaser shall reimburse, indemnify and hold harmless Parent and its Affiliates and their respective ~~Subsidiaries~~representatives from and against any and all Losses (other than third party advisor costs and expenses (including attorney’s fees) and other than overhead, employee and other internal costs incurred by Parent and its Affiliates) suffered or incurred by them in connection with any actions taken at Purchaser’s request to facilitate or effectuate any divestiture, disposition or other remedy pursuant to this Section 5.3(e). No All such efforts by Purchaser shall be unconditional, and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, Parent shall not be obligated to take or agree or commit to take any such action (A) that is not conditioned on the Closing or (B) that relates to or impacts the Retained Businesses. (f) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity 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 any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.3 or Section 5.5, other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Stock Purchase Agreement (Ebay Inc)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall, and shall ~~use reasonable best efforts to take~~cause their respective Affiliates to, ~~or cause to be taken,~~ 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 an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ 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 ~~any Competition Laws~~ the HSR Act or any other applicable Competition Laws ~~relating~~ or under the FPA or with respect to ~~the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~any other Required Approval) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ 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 ~~Parent~~ Seller and Purchaser shall, and shall ~~use reasonable best efforts to~~ cause their respective Affiliates to, 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~~ set forth in Article VIII and ~~shall use reasonable best efforts~~ 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, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ~~Closing~~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. Without limiting the 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 ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Entity for the Sale and the other transactions contemplated by this Agreement. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ 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 ~~6.2~~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 ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 ~~such Person~~transactions contemplated by this Agreement. If any party to this Agreement or any ~~representative~~ 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~~ 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, on one hand, and Parent, on the other hand,~~ 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~and any materials~~ provided by Purchaser to ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~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~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be ~~filed,~~ filed (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, ~~notifications~~ (ii) an application under Section 203 of the ~~HSR Act, and Purchaser and Parent shall file or cause to be filed,~~ FPA as ~~soon~~ promptly as ~~reasonably~~ practicable, but in any event no later than ~~eight~~ fifteen (8) 15) Business Days after the date of this Agreement, ~~those other~~ and (iii) except as otherwise provided herein, any filings and/or notifications ~~set forth~~ 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 (orand shall use reasonable efforts, ~~where~~ 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, ~~drafts thereof)~~ as promptly as possible and produce documents, responses to interrogatories, or other information on ~~Section 6.3(c)~~ a rolling basis, and counsel for both parties shall closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable ~~Competition Laws~~Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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 shall cause its Affiliates to, take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under ~~any Competition Laws~~ applicable Law, so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective ~~Subsidiaries~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates. ~~In that regard~~ All such efforts by Purchaser shall ~~sell~~be unconditional, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding the 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), be required to (and nothing in this Section 5.3 shall be interpreted as requiring Purchaser or any of its Affiliates to) (x) take any action that is not conditioned upon the Closing or (y) consent to any divestiture, hold separate order, limitation on conduct or other remedial action impacting any business or Person other than the Transferred Entities. 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) that relates to the Retained Businesses, and in no event shall Seller or any of 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 assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or 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 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 ~~6.3~~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 each Transferred Entity and/or Facility, as applicable, that has caused such Substantial Detriment

Appears in 1 contract

Sources: Equity Purchase Agreement (Pseg Power LLC)

Required Actions. (a) ~~Purchaser~~ Purchaser, Everest, Olympus and ~~Parent~~ Trango (and for the purpose of this Section 7.6, references to Trango, shall to the extent any other Seller is requested, requisitioned or otherwise required by a Governmental Entity to participate in any of the following, include any such other Seller) shall use its reasonable ~~best efforts~~ endeavors to 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 consummate and make effective in an the most expeditious manner possible the ~~Sale and the other transactions contemplated by this Agreement~~Sale, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale ~~and~~ or otherwise required by any Party or any of its Affiliates under applicable Law in relation to this Agreement or the ~~other transactions contemplated by this Agreement~~Sale, (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~~ Order, confirmation of non-objection or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under ~~any Competition Laws or any other~~ applicable ~~Laws relating to~~ Laws, including Antitrust Laws, and in connection with the ~~filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Approvals) required or advisable to be obtained or made by ~~Purchaser~~ Purchaser, Everest, Olympus or ~~Parent~~ any Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with this Agreement or the ~~Sale and the other transactions contemplated by this Agreement~~Sale, 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 Parent~~ Purchaser, Everest, Olympus and ~~Purchaser~~ Trango shall use its reasonable ~~best efforts~~ endeavors to 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~~ Law to ~~fulfill~~ fulfil all conditions precedent to this Agreement and shall use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ClosingAgreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Everest, Olympus and ~~Parent~~ Trango shall each keep the other ~~reasonably~~ 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 or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, ~~Orders~~ Orders, confirmations of non-objection or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~7.5, to the extent not prohibited by applicable Law, each of ~~Parent~~ Purchaser, Everest, Olympus and ~~Purchaser~~ Trango shall promptly consult with ~~the~~ each other ~~party~~ to provide any necessary or reasonably ~~necessary~~ requested information with respect to (and, in the case of correspondence, provide ~~the~~ each other ~~party~~ (or their counsel) copies of) all filings made by such ~~party~~ Party with any Governmental Entity or any other information supplied by such ~~party~~ Party to, or correspondence with, a Governmental Entity in connection with this ~~Agreement, the Sale~~ Agreement and the ~~other transactions contemplated by this Agreement~~Sale. Subject to the Confidentiality Agreement and Section ~~6.2~~7.5, to the extent not prohibited by applicable Law, each ~~party to this Agreement~~ of Purchaser, Everest, Olympus and Trango shall promptly inform ~~the other party to this Agreement~~each other, and if in ~~writing~~the case of written communication, furnish ~~the~~ each other ~~party~~ with copies of (or, in the case of oral communications, advise ~~the~~ each other ~~party~~ orally of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Sale, and ~~except as provided in Section 6.20,~~ permit ~~the~~ each other ~~party~~ to review and discuss in advance, and consider in good faith ~~the~~ each other’s views ~~of the other party~~ in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any ~~party~~ Party to this Agreement or any representative of such ~~party~~ 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~~Sale, then such ~~party will~~ Party shall make, or cause to be made, promptly and after consultation with ~~the other party to this Agreement~~Purchaser, Everest and Olympus, an appropriate response in compliance with such request. ~~Purchaser, on one hand, and Parent, on the other hand,~~ No 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~~ proceeding or Action, inquiry, audit, notice of violation, summons, subpoena or investigation by a private party relating to any ~~Competition~~ applicable Antitrust Laws in connection with this Agreement or the ~~Sale~~Sale or to the Regulatory Approvals, or make oral submissions at meetings or in telephone or other conversations, unless it consults with ~~the~~ each other ~~party~~ Party in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the~~ each other ~~party~~ Party the opportunity to attend and participate thereat, provided, that a Party may communicate with a Governmental Entity in the ordinary course regarding the status of any pending Regulatory Approval without providing advance notice to each other Party (except where such communication includes a material update to a Governmental Entity), but shall thereafter provide a copy of the communication to such other Parties. Subject to the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each Party shall furnish Purchaser, Everest and Olympus with copies of all correspondence, filings, submissions and communications between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale, and furnish Purchaser, Everest and Olympus with such necessary information and reasonable assistance as Purchaser, Everest or Olympus, as applicable, may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and ~~Parent~~ Olympus, and consistent with its obligations hereunder, have principal discretion in devising and implementing the strategy for obtaining Regulatory Approvals, including making the final determination as to whether and when to submit any voluntary or discretionary notifications or filings in connection with this Agreement or the Sale under any Antitrust Law to Governmental Entities in any of the jurisdictions where the net revenue of Purchaser for the fiscal year 2018 exceeded $10 million (the “Specified Jurisdictions”); provided, that Purchaser shall use its reasonable best endeavours to expedite the conclusion of any investigation of the Sale under any Antitrust Law; provided, further, that none of Everest, Olympus or any of their respective Subsidiaries or any director of Everest, Olympus or any of their respective Subsidiaries shall be obligated to make or refrain from making any notification or filing to any Governmental Entity in circumstances where they believe (acting reasonably) it would be a breach of their obligations under applicable Law to make or refrain from making (as the case may be) such notification or filing. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and Olympus, and consistent with its obligations hereunder, have principal discretion in determining the form and content of, and when to submit, any applications, notifications or filings in relation to a Regulatory Approval and any of the notifications set forth in the column headed “Pre-completion Notice Required” at of Section 7.6(b) of the Olympus Disclosure Schedule (each, a “Regulatory Notification”). Purchaser, Everest and Olympus may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Parties under this Agreement as “outside counsel only”, “outside antitrust counsel only”, “outside regulatory counsel only” or “outside counsel/corporate in-house antitrust and regulatory counsel only.” Such designated materials and any materials provided by ~~Purchaser to Parent~~ Purchaser, Everest or ~~by Parent to Purchaser~~ Olympus pursuant to this Section ~~6.3~~7.6, and the information contained therein, shall be given only to the ~~outside~~ designated legal counsel of the recipient and shall not be disclosed ~~by such outside counsel and in-house counsel~~ to ~~employees (~~any other ~~than in-house counsel), officers or directors of the recipient~~ Person unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Purchaser, Everest or ~~Parent~~Olympus, 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~~Everest and/or Olympus, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) ~~Purchaser~~ Purchaser, Everest and ~~Parent~~ Olympus shall file or cause to be ~~filed~~filed (as applicable) (i) any filings and/or notifications required under applicable Antitrust Laws or in connection with the Regulatory Approvals, (ii) the Regulatory Notifications and (iii) any voluntary or discretionary notifications or filings as promptly as practicable, but in any event any final notifications or, where a draft must be filed prior to the final notification, initial draft notifications of any other filings shall be submitted no later than ~~five (5)~~ the earlier of the applicable statutory deadline and 20 Business Days after the date of this ~~Agreement~~Agreement (unless the applicable notification or filing is not required to be made until after the Closing). In the event that Purchaser, ~~notifications under~~ Everest or Olympus receives a request for additional information or documentary materials after an initial notification pursuant to any applicable Antitrust Law or in connection with any of the ~~HSR Act~~Regulatory Approvals, the applicable Party shall use its respective reasonable endeavors to certify compliance with such requests, as applicable, as promptly as practicable and advisable, and ~~Purchaser and Parent~~ counsel for the Parties shall ~~file~~ closely cooperate during the entirety of any such investigatory or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)review process. (d) ~~Purchaser~~ Each of Purchaser, Everest and Olympus shall use its ~~best efforts~~ reasonable endeavors to resolve as promptly as practicable such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale under any applicable Antitrust ~~and Foreign Investment Filings~~Laws or in connection with any of the Regulatory Approvals. In connection therewith, if any ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation is instituted (or threatened to be instituted) challenging the Sale ~~or the other transactions contemplated by this Agreement~~ as violative of any applicable ~~Competition~~ Laws, ~~Purchaser~~ Purchaser, Everest and Olympus shall jointly (to the extent practicable) use ~~its~~ their respective reasonable ~~best efforts~~ endeavors to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation 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~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Sale, including by defending any such ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation 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, inquiry, audit, notice of violation, summons, subpoena or investigation. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement~~the foregoing, Purchaser shall take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Antitrust Laws and in connection with any of the Regulatory Approvals so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of ~~the Transferred Entities~~Everest, ~~Purchaser,~~ Olympus and their respective ~~Subsidiaries,~~ Affiliates and (ii) otherwise taking or committing to take actions that after the Closing would limit ~~Purchaser~~Everest’s, ~~the Transferred Entities’~~ Olympus’s or any of their respective ~~Subsidiaries~~Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of ~~the Transferred Entities~~Everest, ~~Purchaser, and~~ Olympus or their respective ~~Subsidiaries~~Affiliates. In that regard Purchaser shall ~~sell~~and, ~~dispose of~~if requested by Purchaser, ~~hold separate~~Everest or Olympus shall (but, ~~or otherwise take or commit~~ subject to each Party’s obligations under this Agreement, including this Section 7.6, and if not so requested by Purchaser shall not), agree to take any action ~~that limits its~~ with respect to the Everest Business or the Olympus Business, including agreeing to or otherwise effecting any sale, divestiture, license, hold separate arrangement, or any limitation or restriction on the freedom of action with respect toto such businesses and assets; provided, that Purchaser shall not be obligated to take or ~~Purchaser’s Subsidiaries’ ability~~ agree or commit to ~~retain~~take, and neither Everest nor Olympus shall discuss, propose, agree or commit to take, any of such action that is not conditioned on the ~~businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries~~Closing. No actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~7.6(e) shall be considered for purposes of determining whether a ~~Business~~ Material Adverse Effect has occurred or may occur. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Purchaser be obligated to, and Everest and Olympus shall not agree with a Governmental Entity without the prior written consent of Purchaser, to (A) divest, hold separate, license, or otherwise encumber the assets or businesses of Everest, Olympus or their respective Affiliates if such actions, individually or in the aggregate, would be material to the financial condition, business or results of operations of Everest and its Subsidiaries, taken as a whole, or material to the financial condition, business or results of operations of Olympus and its Subsidiaries, taken as a whole, or (B) divest, hold separate, license, accept any operational modification or restriction with respect to or otherwise encumber the assets or businesses of Purchaser or its Subsidiaries. (f) ~~Whether~~ Neither Purchaser nor any of its Affiliates shall, or shall agree to, acquire, whether by merging with or into, consolidating with, purchasing all or a portion of the assets of or all or a portion of the equity in, or otherwise, any business or corporation, partnership, or other business organization or division thereof or other Person, or dissolve, merge or consolidate with any other Person, or engage in any business combination transaction or sale, whether by merging with or into, consolidating with, or selling all or a portion of its or its Affiliates’ assets or equity to, any other Person, or take any other action, including entering into, or agreeing to enter into, any license, joint venture or other agreement or transaction, which could reasonably be expected to, in each case or in the aggregate, (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, (A) the ~~Sale is consummated~~expiration, ~~Purchaser shall be responsible for all filing fees to obtain~~ termination or waiver of any applicable waiting period or any consent, ~~clearance~~approval, ~~expiration or termination of a waiting period~~permit, ruling, authorization, ~~Order~~ clearance or other approval pursuant to the Antitrust Laws necessary to consummate the transactions contemplated hereby or (B) any of the Regulatory Approvals, (ii) materially increase the risk of any Governmental Entity entering an Order prohibiting the consummation of the transactions contemplated hereby, including the Sale, (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise, (iv) materially delay, impair, impede, hinder, adversely affect or prevent the consummation of the transactions contemplated hereby, including the Sale, or (v) cause any of the conditions set forth in Article VIII to fail to be satisfied or materially delay, impair, impede, hinder, adversely affect or prevent the ability of Purchaser and its Affiliates to perform their obligations under this ~~Section 6.3.~~Agreement. Purchaser shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated hereby, including the Sale, or withdraw its notification and report form pursuant to any registrations, applications, declarations, reports, submissions or other filings made pursuant to any applicable Antitrust Law or in connection with any of the Regulatory Approvals unless each of Everest and Olympus has given its prior written consent to such extension o

Appears in 1 contract

Sources: Share Purchase Agreement (WEX Inc.)

Required Actions. (a) Subject to any different standard expressly set forth herein with respect to any covenant or agreement of the parties hereto, Purchaser and ~~Parent~~ Seller shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to 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 consummate and make effective in an expeditious manner the ~~Sale and the other~~ transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other~~ transactions contemplated by this ~~Agreement,~~ 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 ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Laws) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ 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~~ or otherwise become applicable to ~~fully carry out~~ the ~~purposes of~~ transactions contemplated by this Agreement. Additionally, each of ~~Parent~~ Seller and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ not to (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, materially delay or impede 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~~ Regulatory Approvals required to be obtained at or ~~prior~~ made by Purchaser or Seller or any of their respective Affiliates in connection with the 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, materially delay or impede the ~~Closing~~consummation of the transactions contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~6.4, to the extent not prohibited by applicable Law, each of ~~Parent~~ Seller and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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 ~~6.2~~6.4, 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~~ substantive communication from any Governmental Entity or other such Person regarding the ~~Sale or the other~~ transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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~~ communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any ~~representative~~ 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~~Purchaser or its Representatives, on one hand, and ~~Parent~~Seller or its Representatives, on the other hand, shall not participate in any substantive meeting with any Governmental Entity in connection with this Agreement or the ~~Sale~~transactions contemplated hereby, or with any other Person in connection with any Action by a private party relating to any ~~Competition~~ Regulatory Laws in connection with this Agreement or the ~~Sale~~transactions contemplated hereby, 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~6.5, 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~~ recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or ~~Parent~~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 ~~confidentiality arrangements~~ obligations and (iii) as necessary to ~~address reasonable privilege concerns~~protect privileged attorney-client communications or attorney work product. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five~~ ten (510) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as ~~soon~~ promptly as ~~reasonably~~ practicable, ~~but in~~ any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other~~ transactions contemplated by this Agreement ~~as violative~~ under any Regulatory Laws; provided, however, notwithstanding anything in this Agreement to the contrary it is expressly understood and agreed that neither Purchaser nor any of its Subsidiaries or Affiliates shall be under any ~~applicable Competition Laws~~obligation to: (a) litigate or contest any administrative or judicial action or proceeding or any decree, ~~Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions~~judgment, injunction or other order, whether ~~judicial~~ temporary, preliminary or ~~administrative~~permanent, or (b) make proposals, execute or carry out agreements or submit to orders providing for (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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or other disposition or holding separate (through the establishment of a trust or otherwise) of any ~~businesses, product lines~~ assets or categories of assets of ~~the Transferred Entities,~~ Purchaser, ~~and their respective Subsidiaries~~any of its Affiliates or the Company, ~~and~~ or the holding separate of shares of capital stock of the Company, (ii) the imposition of any limitation on the ability of Purchaser or any of its Affiliates to freely conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of shares of capital stock of the Company, or (iii) any modification or waiver of the terms and conditions of this Agreement, (c) otherwise agree to any course of conduct (or refrain from taking ~~or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action~~ any action) with respect to, any assets, rights, product lines, businesses, properties, divisions or ~~its or their ability to retain~~operations, or, in each case, any ~~businesses~~interests therein, ~~product lines~~ of Purchaser or ~~assets~~ such Affiliates, or the Business, and further that the Company or Seller shall in no event agree or commit to (or cause any of its Subsidiaries (including the Transferred Entities~~, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take~~ ) to agree or commit to) to ~~take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain,~~ any of the ~~businesses, product lines or assets~~ actions described in the foregoing without the prior written consent of ~~the Transferred Entities,~~ Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (fe) 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 payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~6.5, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

Sources: Stock Purchase Agreement (Limelight Networks, Inc.)

Required Actions. (a) ~~Purchaser and Parent~~ Each of the parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things ~~necessary, proper or advisable under any applicable Laws~~ necessary to consummate and make ~~effective in an expeditious manner~~ effective, as soon as reasonably possible, the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 Mergers and the other transactions contemplated by this Agreement in accordance with the terms hereof. Without limiting the generality of the foregoing, upon the terms and subject to ~~fully carry out~~ the ~~purposes of~~ conditions set forth in this Agreement~~. Additionally~~, each of ~~Parent and Purchaser shall~~ the parties agrees to use reasonable best efforts to take, or cause to be taken, all ~~actions, and do, or cause to be done, all things~~ actions that are necessary, proper or advisable ~~under any applicable Laws~~ to ~~fulfill all conditions precedent to this Agreement~~ consummate and ~~shall use reasonable best efforts not to take any action after~~ make effective, in the ~~date of this Agreement that would reasonably be expected to materially delay~~ most expeditious manner practicable, 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. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale Mergers and the other transactions contemplated by this Agreement ~~and work cooperatively in connection with obtaining~~ (which transactions, for the avoidance of doubt, shall include the receipt by each Galaxy Stockholder of its applicable portion of the Closing Date Stock Merger Consideration following delivery of a Letter of Transmittal or Optionholder Release Agreement, as applicable), including using reasonable best efforts to accomplish the following: (i) obtain all required consents, ~~clearances~~approvals or waivers from, ~~expirations~~ or ~~terminations~~ participation in other discussions or negotiations with, third parties, including as required under any Contract (provided, however, that such reasonable best efforts shall not include any requirement of any party to pay any amounts to any third party from whom such consent, approval or waiver is sought (other than de minimis costs or expenses with respect to the processing of such consent, approval or waiver), commence any arbitration proceedings or litigation or offer or grant any accommodation (financial or otherwise) to any third party), (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and (iii) make all necessary registrations, declarations and filings with any Governmental Entity, including filings required under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice (an “Antitrust Authority”); in furtherance and not in limitation of the foregoing, Parent and Galaxy each shall, no later than ten Business Days following the execution and delivery of this Agreement, file a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.3 necessary to cause the expiration or termination of the applicable waiting ~~periods~~period under the HSR Act as soon as practicable (but in any event prior to the End Date). Each of Parent and Galaxy shall substantially comply with any request or demand for the production, ~~authorizations, Orders~~ delivery or ~~approvals of~~disclosure of documents or other evidence, or any ~~exemptions by~~request or demand for the production of witnesses for interviews or depositions or other oral or written testimony, ~~any Governmental Entity. In that regard, prior~~ by an Antitrust Authority relating to the ~~Closing~~transactions contemplated hereby or by any third party challenging the transactions contemplated hereby, ~~subject to~~ including any so called “second request” for additional information or documentary material or any civil investigative demand made or issued by an Antitrust Authority or any subpoena, interrogatory or deposition. Galaxy and Parent shall each be responsible for one-half of any filing and other similar fees payable in connection with the ~~Confidentiality Agreement~~ filing of a Notification and ~~Section 6.2, to~~ Report Form and any other submissions under the ~~extent not prohibited by applicable Law, each of Parent and Purchaser~~ HSR Act. (b) Each party shall promptly ~~consult with~~ furnish to the other party ~~to provide~~ copies of any ~~reasonably necessary information~~ notices or written communications received by it or any of its Affiliates from any third party or any Governmental Entity 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ shall permit the other ~~party~~ party’s counsel an opportunity to review ~~and discuss~~ in advance, and such party shall consider in good faith the views of ~~the other party~~ such counsel in connection with, any proposed written ~~or oral communication or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any representative of~~ communications by such party ~~receives a request for additional information or documentary material from~~ and/or its Affiliates to any Governmental Entity ~~with respect to~~ concerning the ~~Sale or the other~~ transactions contemplated by this Agreement~~, then such~~ . Each party ~~will make, or cause~~ agrees to ~~be made, promptly and after consultation with~~ provide the other party ~~to this Agreement, an appropriate response in compliance with such request. Purchaser~~and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such party and/or any of its Affiliates, agents or advisors, on the one hand, and ~~Parent~~any Governmental Entity, on the other hand, ~~shall not participate in any meeting with any Governmental Entity~~ concerning or 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concernstransactions contemplated hereby. (c) ~~Purchaser and~~ Parent shall ~~file or cause~~ give prompt notice to ~~be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act~~Galaxy, and ~~Purchaser and Parent~~ Galaxy shall ~~file or cause~~ give prompt notice to ~~be filed~~Parent, ~~as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date~~ of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) ~~oppose~~ any representation or ~~defend against any Action~~ warranty made by ~~any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by~~ it contained in this Agreement ~~and/or~~ that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) ~~take~~ the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such ~~action as necessary~~ notification (or failure to ~~overturn any regulatory Action by any Governmental Entity~~ give such notification) shall affect or be deemed to ~~block consummation~~ modify the representations, warranties, covenants or agreements of the ~~Sale~~ parties or the ~~other transactions contemplated by~~ conditions to the obligations of the parties under 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Sequential Brands Group, Inc.)

Required Actions. (a) ~~Purchaser~~ Buyer and ~~Parent~~ Sellers shall, and shall cause their applicable Affiliates to, use commercially reasonable ~~best~~ efforts to ~~take~~(i) promptly make all filings and notifications with, ~~or cause to be taken~~and obtain all authorizations, consents, orders and approvals of, all ~~actions~~Governmental Entities that may be or become necessary for their respective execution and delivery of, and dothe performance of their respective obligations pursuant to, ~~or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale~~ and the consummation of the transactions contemplated by, this Agreement, including an appropriate filing of a notification and report form pursuant to the HSR Act or any other applicable antitrust or noncompetition Laws or regulations with respect to the transactions contemplated by this ~~Agreement~~Agreement (collectively, ~~including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement~~“Governmental Approvals”), (ii) ~~taking all actions necessary to obtain (and cooperating~~ cooperate with the reasonable requests of each other in ~~obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any~~ promptly seeking to obtain all such Governmental Entity (which actions shall include furnishing all information required under any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale and the other transactions contemplated by this AgreementApprovals, and (iii) ~~the execution and delivery of any additional instruments~~ take all actions as may be necessary to ~~consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement~~obtain such Governmental Approvals. ~~Additionally, each of Parent and Purchaser~~ No party shall use reasonable best efforts to 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 use reasonable best efforts not to take any action ~~after the date of this Agreement~~ that would reasonably be expected to ~~materially delay~~ have the ~~obtaining of~~effect of delaying, impairing or ~~result in not obtaining, any consent, clearance, expiration or termination~~ impeding the receipt 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.~~Approval (b) ~~Prior~~ Notwithstanding Section 6.8(a), Buyer and Sellers shall take all actions as may be necessary to obtain approval under the ~~Closing~~HSR Act and to obtain early termination or expiration of the “waiting period” (as defined by the HSR Act and the Rules promulgated thereunder). (c) The Sellers and Buyer shall, to the extent ~~not prohibited by applicable Law, Purchaser~~ practicable and ~~Parent shall each keep the other reasonably apprised~~ without waiver 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~~attorney client privilege, 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 Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably necessary information with respect to (and, jointly participate in the ~~case~~ defense and settlement of ~~correspondence, provide the other party (or their counsel) copies of) all filings made~~ any Action 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~~ relating to 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 or other such Person regarding the Sale Share Purchase or the other transactions contemplated ~~by this Agreement~~hereby, and ~~except as provided in Section 6.20, permit~~ neither 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~~ Sellers nor Buyer shall settle or ~~oral communication or submission with or to~~ compromise any such ~~Governmental Entity or~~ Action without the other’s written consent. (d) Buyer and the Sellers shall promptly notify each other ~~such Person. If~~ of any ~~party to this Agreement or any representative~~ material communication either of ~~such party~~ them receives ~~a request for additional information or documentary material~~ from any Governmental Entity ~~with respect~~ relating to the ~~Sale or~~ matters that are the ~~other transactions contemplated by~~ subject of this Agreement~~, then such party will make, or cause~~ . Neither Buyer nor the Sellers shall agree to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand, and Parent, on the other hand, shall not participate in any meeting with any Governmental Entity ~~in connection with~~ relating to the matters that are the subject of this Agreement ~~or the Sale, or with any other Person in connection with any Action by a private~~ unless such party ~~relating to any 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~~ permitted by such Governmental Entity, gives the other ~~party~~ the opportunity to attend and participate ~~thereat~~at such meeting. ~~Purchaser~~ The parties will coordinate and ~~Parent may,~~ cooperate fully with each other in exchanging such information and providing such assistance as ~~each deems~~ such parties may reasonably request in ~~good faith~~ connection with the foregoing. In no event shall Buyer or the Sellers be obligated to ~~be advisable and necessary, reasonably designate~~ provide the other any ~~competitively sensitive material provided~~ portion of its HSR notification filing not customarily furnished to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Parent or by Parent 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 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 Parent, 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 connection with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 Actionfilings. (e) ~~Notwithstanding any other provision of this Agreement, Purchaser~~ Buyer shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for pay all filing fees ~~to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3~~required under the HSR Act.

Appears in 1 contract

Sources: Stock Purchase Agreement (IHS Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ Sellers shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an the most expeditious manner possible the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, ~~including~~ including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement,~~ Sale; (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement, and Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale ~~and the other transactions contemplated by this Agreement~~ and to fully carry out the purposes of this Agreement, and (iv) not acquiring any senior notes issued under the Embarq Indenture for purposes of asserting an Event of Default (as defined in the Embarq Indenture) thereunder. Additionally, each of ~~Parent~~ Sellers and Purchaser (1) shall use reasonable best efforts to 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 (2) shall ~~use reasonable best efforts~~ 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~~Required Regulatory Approval; provided, ~~clearance~~however, ~~expiration~~ that Purchaser shall be permitted to file any additional or ~~termination~~ updated applications for any Required Regulatory Approval that may be required in connection with obtaining Debt Financing Sources or equity investments in Purchaser between the date hereof and Closing (collectively, “New Financers/Investors”), as long as Lumen has approved any such New Financers/Investors in writing before or after the date of ~~a waiting period, authorization, Order or~~ this Agreement (such approval ~~of, or any exemption by, any Governmental Entity necessary~~ not to be ~~obtained at~~ withheld, conditioned or ~~prior~~ delayed, to the ~~Closing~~extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date). (b) Prior to the Closing, ~~to the extent not prohibited by applicable Law,~~ Purchaser and ~~Parent~~ Sellers shall each keep the other reasonably 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~~ any Required Regulatory Approval, including by working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if and to the extent required ~~consents, clearances, expirations or terminations~~ to be undertaken pursuant to the provisions of ~~waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity~~this Section 5.6. In that regard, prior to the Closing, ~~subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law,~~ each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other party (or ~~their~~ its 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~~ Agreement and the ~~other transactions contemplated by this Agreement~~Sale. ~~Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each~~ 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 orally of) any material communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Sale, and ~~except as provided in Section 6.20,~~ 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 ~~Entity or other such Person~~Entity. If ~~any~~ either 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~~Sale, 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~~To the extent practicable, ~~on one hand, and Parent, on the other hand,~~ neither Sellers nor 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 any Competition Laws in connection with this Agreement or the Sale,~~ 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,~~ and gives the other party the opportunity to attend and participate thereat. ~~Purchaser and Parent may~~To the extent permitted by Law, as each ~~deems in good faith to be advisable and necessary, reasonably designate any competitively sensitive material provided to~~ party shall furnish the other party ~~under this Agreement as “outside counsel only.” Such designated materials~~ with copies of all material correspondence, filings and material communications between it and any materials provided by Purchaser to Parent or by Parent 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 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 Parent, as the case may be) or its legal counsel; it being understood that materials provided pursuant Governmental Entity with respect to this Agreement and the Sale, and furnish the other party with such reasonably 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. Notwithstanding anything in this Section 5.6 to the contrary, neither Purchaser nor Sellers shall be ~~redacted (i)~~ obligated to ~~remove references concerning~~ take or agree to commit to take any action that would violate applicable Law or their respective covenants under the ~~valuation of the Business, (ii) as necessary to comply with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns~~Confidentiality Agreement or Section 5.5. (c) Purchaser and ~~Parent~~ Sellers shall ~~file or cause to be filed~~file, as promptly as practicable, but in any event no later than sixty-five (565) ~~Business Days~~ calendar days after the date of this ~~Agreement~~Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and ~~Parent~~ Sellers shall file ~~or cause to be filed~~and provide, as ~~soon~~ promptly as ~~reasonably~~ practicable, ~~but in~~ any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth (or~~or information required to obtain the Required Regulatory Approvals, ~~where~~ including to the extent applicable, ~~drafts thereof) on Section 6.3(c)~~ filing all applications with the FCC and any applicable State Regulators that may be required by the Communications Act or similar rules, regulations, policies, instructions and orders of State Regulators. In the ~~Purchaser Disclosure Schedule (collectively~~event that the parties receive a request for any additional information after any such notification or filing, the ~~“Antitrust~~ parties shall respond to such requests, as applicable, as promptly as possible, and ~~Foreign Investment Filings”)~~counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings~~Sale under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws, or any other United States federal or state or foreign or supranational Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade (collectively, “Competition Laws”), or any other United States federal or state or foreign or supranational Laws relating to regulation of the Business (together with the Competition Laws, the “Regulatory Laws”). In connection therewith, if any ~~Action~~ Proceeding is instituted (or threatened to be instituted) challenging the Sale ~~or the other transactions contemplated by this Agreement~~ as violative of any ~~applicable Competition~~ Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use ~~its~~ their respective reasonable best efforts to ~~initiate and/or~~ participate in any ~~Actions~~Proceedings, whether judicial or administrative, to in order to: (i) oppose or defend against any ~~Action~~ action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale or the other transactions contemplated by this Agreement~~ Sale; and/or (ii) take such action as necessary to ~~overturn~~ oppose any regulatory ~~Action~~ action by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Sale, including by defending any ~~such Action~~ Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any ~~Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement~~ Legal Restraint resulting from any Proceeding. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, (1) Purchaser shall, on behalf of the parties, have the principal responsibility for all communications, strategy, and other aspects relating to all applicable Competition Laws in connection with obtaining the Required Regulatory Approvals or causing the waiting periods or other requirements under such ~~Action~~Competition Laws to terminate or expire no later than the Outside Date; (2) neither Purchaser nor Sellers will withdraw its or their filing under the HSR Act or enter into any timing agreement with any Governmental Entity without the written consent of the other party; and (3) if any Seller is named as a party to any lawsuit, such Seller shall have the right to act independently provided that such Seller shall consider Purchaser’s views and comments in good faith. (e) Notwithstanding any other provision of this Agreement, but subject in all respects to the last sentence in this Section 5.6(e), Purchaser shall take all reasonable actions ~~reasonably necessary~~ necessary, to avoid or eliminate each and every impediment under any ~~Competition Laws~~ Regulatory Laws, so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), ~~including~~ including: (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the ~~Transferred Entities~~Acquired Subsidiaries, Purchaser, and their respective Subsidiaries; (ii) conducting the Business after the Closing Date in a specified manner; (iii) committing to make capital expenditures or other expenditures in the Territory, including, in each case, by agreeing to undertakings required by a Governmental Entity that it or any of its Subsidiaries will take, or refrain from taking, any action, and (iiiv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser~~’s, the Transferred Entities’~~ ’s or ~~their respective~~ its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Transferred Entities~~Acquired Subsidiaries, Purchaser, and their respective Subsidiaries~~. In~~ , and in that regard Purchaser shall cause the Acquired Subsidiaries to (but, without modifying Purchaser’s obligations under this Agreement, including the obligations set forth in this Section 5.6) agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, the ability of Purchaser, the Acquired Subsidiaries, or ~~Purchaser’s Subsidiaries’ ability~~ their respective Subsidiaries to retain, any of the businesses, product lines or assets of the ~~Transferred Entities~~Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. No All such efforts by Purchaser shall be unconditional, and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a ~~Business~~ Material Adverse Effect has ~~occurred~~ occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser may be conditioned upon the Closing. Notwithstanding the foregoing or any other provision of this Agreement to the contrary: (i) the obligations of Purchaser under this Section 5.6 shall not include Purchaser committing to (whether or not conditioned upon the consummation of the Closing) (x) with respect to obtaining any of the Required Regulatory Approvals other than those governed by clause (y) below, taking any action if such action, individually or together with any other proposed action(s) relating to the approvals governed by this clause (x), would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), business, assets or result of operations of Purchaser, the Acquired Subsidiaries or the Business, taken as a whole (after giving effect to the Closing, to the transactions contemplated hereby to occur on or prior to the Closing, and to the manner in which the Purchaser intends to operate the Business following the Closing as disclosed by Purchaser to Sellers prior to the Execution Date (“Purchaser’s Operational Plan”)) (any such action being hereinafter referred to as a “Material Action”), or (y) with respect to obtaining any approval of the FCC or any State Regulators required in respect of the Transactions contemplated herein, taking any actions or accepting any conditions, requirements, or other remedies proposed, requested, or required by the FCC or any State Regulators (any such conditions, requirements, actions or other remedies being hereinafter referred to as “Conditions”) to the extent such Conditions, individually or in the aggregate, would or would reasonably be expected to materially reduce the commercial value of, or result in an impact that is materially adverse to, or a cost that is material to, the assets, business, results of operations or condition (financial or otherwise) of the Purchaser, the Acquired Subsidiaries (taken as a whole) or the Business (after giving effect to the Closing, to the transactions contemplated hereby to occur on or prior to the Closing, and to Purchaser’s Operational Plan) (any such Condition being hereinafter referred to as a “Burdensome Condition”); provided that, without limiting the foregoing in clauses (x) and (y), the parties hereto acknowledge that the type of such actions or Conditions that may ~~occur~~be proposed, or that Purchaser may be requested or required to accept, are illustrated by (A) the categories of conditions, requirements, actions or other remedies that were imposed by the FCC (with respect to approvals required from the FCC), by the State Regulators (with respect to approvals required from the State Regulators) or by any other regulatory body (with respect to the Required Regulatory Approvals specified in clause (x)) in comparable transactions in the telecommunications industry that have been consummated since July 1, 2008; or (B) the specific FCC regulatory actions identified in the Executive Order on Promoting Competition in the American Economy issued by President ▇▇▇ ▇▇▇▇▇ on July 9, 2021 (Executive Order No. 14036); and (ii) no Guarantor, nor any of their Affiliates (other than Purchaser and its Subsidiaries), nor any direct or indirect equityholder of Purchaser (or any of such equityholder’s Affiliates), nor any portfolio company or investment fund Affiliated with any Guarantor, shall be required to take any action in connection with the obligations of Purchaser under Section 5.6, including in respect of Purchaser’s obligations to use reasonable best efforts to obtain any clearance required under such Laws for the consummations of the Transactions, other than responding to any reasonable requests for information from Purchaser or Sellers that may be required in connection with any filings with any Governmental Entity pursuant to this Section 5.6. (f) Notwithstanding anything to the contrary in this Agreement, Sellers shall not be obligated to take or agree or commit to take any action: (i) that relates to any business, operations, assets, liabilities, product lines or Subsidiary not to be transferred pursuant to and in accordance with the terms and conditions of this Agreement; or (ii) that would amend in any material respect the terms of this Agreement or any Ancillary Agreement or that would otherwise adversely affect the economic benefits of the Transactions accruing to Sellers. (g) Purchaser agrees to provide such information reasonably available as to its financial capability, resources and creditworthiness as may be reasonably requested by (i) any Governmental Entity which reasonably requests such information in connection with the transactions contemplated by this Agreement, and (ii) any Governmental Entity or 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 filing fees and similar payments (including filing fees under the HSR Act) to any Governmental Entity in order to obtain any ~~consent~~consents, ~~clearance, expiration~~ approvals or ~~termination of a waiting period, authorization, Order or approval~~ waivers pursuant to this Section ~~6.3~~5.6, other than the fees of and payments to Sellers’ legal and professional advisors. (h) To the extent necessary to comply with any state Laws and regulations and the rules, regulations, written policies, instructions and orders of the FCC, including those prohibiting “slamming” as set forth in 47 C.F.R. Section 64.1120, at least 60 calendar days prior to the estimated Closing Date (as reasonably estimated by the parties), (i) Purchaser shall, at its own expense, prepare and delive

Appears in 1 contract

Sources: Purchase Agreement

Required Actions. (a) Purchaser and its Affiliates, including, if applicable, its UPE, and Parent shall ~~use reasonable best efforts to~~ take, or cause to be taken, all ~~actions, and do, or cause to be done, all things~~ actions necessary, proper or advisable under any applicable Laws to consummate and make effective in an the most expeditious manner possible the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement, including ~~(i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser (and, if applicable, its UPE) or Parent or any of their respective Subsidiaries in connection with the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement. (b) Purchaser (and, if applicable, its UPE) 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 Parent ~~and Purchaser~~ shall ~~use reasonable best efforts to take,~~ file or cause to be ~~taken~~filed, any filings (including draft filings) or notifications under applicable Competition and Foreign Investment Laws within the timeframes set out in Section 8.1(a) of the Parent Disclosure Schedule. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to any Competition and Foreign Investment Laws, the parties shall use their respective 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. Purchaser and its Affiliates, including, if applicable, its UPE, shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated hereby or by the Ancillary Agreements or any filing made pursuant to any Competition and Foreign Investment Laws unless Parent has given its prior written consent to such extension or delay or withdrawal. (i) Purchaser shall control all ~~actions~~communications with any Governmental Entity relating to Competition and Foreign Investment Laws, and dodetermine and direct the strategy and process by which the parties will obtain all required consents, clearances, expirations or ~~cause to be done~~terminations of waiting periods, ~~all things necessary~~authorizations, ~~proper~~ Orders or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and shall use reasonable best efforts 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 or approval approvals of, or any ~~exemption~~ exemptions by, any Governmental Entity ~~necessary~~ relating to ~~be obtained at~~ Competition and Foreign Investment Laws; provided that Purchaser covenants and agrees to consider in good faith all comments of Parent (or as appropriate Parent’s outside counsel) with respect to filings, submissions and communications prior to delivery of the ~~Closing~~same to any Governmental Entity. Without limiting the foregoing, the parties agree to the matters set forth on Section 5.3(c)(i) of the Purchaser Disclosure Schedule. (bii) ~~Prior~~ Without limiting the generality of Section 5.3(c)(i), prior to the Closing, to the extent not prohibited by applicable Law, Parent and Purchaser ~~and Parent~~ shall ~~each keep~~ (A) work cooperatively with the other ~~reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively~~ party 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 Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably necessary information with respect to (~~and, in the case of correspondence, provide the other party (or their counsel~~B) 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 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other ~~party to this Agreement~~party, 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 ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, ~~and except as provided in Section 6.20,~~ (C) 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 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, on one handEntity, and ~~Parent, on the other hand, shall~~ (D) not participate in any meeting with any Governmental Entity in connection with this ~~Agreement~~ Agreement, the Sale or the ~~Sale~~other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to any Competition and Foreign Investment Laws in connection with this ~~Agreement~~ Agreement, the Sale or the ~~Sale,~~ other transactions contemplated by this Agreement or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance ~~and, to the extent not prohibited by such Governmental Entity,~~ and gives the other party the opportunity to attend and participate thereat~~. Purchaser and Parent may~~. (iii) Any disclosures, ~~as each deems in good faith~~ provisions of information or rights to ~~be advisable and necessary, reasonably designate any competitively sensitive material provided~~ participate by one party to the other party under this ~~Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this~~ Section ~~6.3~~5.3 may be made on a counsel-only basis, ~~and the information contained therein, shall be given only~~ to the ~~outside legal counsel of the recipient~~ extent such party deems it advisable and necessary, and shall not be disclosed by such outside counsel ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) ). Such designated disclosures or ~~its legal counsel; it being understood that materials provided pursuant to this Agreement~~ information may be redacted (iA) to remove references concerning the valuation of the ~~Business~~Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchaser and their respective Affiliates, (iiB) as necessary to comply with contractual ~~confidentiality~~ arrangements and (~~iii~~C) as necessary to address reasonable privilege or confidentiality concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser and its Affiliates and Parent shall use ~~its~~ their respective best efforts to take the actions set forth in this Section 5.3(d) to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement under any Competition and Foreign Investment ~~Filings~~Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Pre-Closing Restructuring, the Sale or the other transactions contemplated by this Agreement as violative of any ~~applicable~~ Competition and Foreign Investment Laws, ~~Purchaser~~ Purchaser, its Affiliates and Parent shall ~~use its reasonable best efforts to~~ initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale~~ Pre-Closing Restructuring, the Closing 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~~ Pre-Closing Restructuring, the Closing 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~~ Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement resulting from any such Action. (e) ~~Notwithstanding any other provision~~ In furtherance of the undertakings in this ~~Agreement~~Section 5.3, but except as set forth on Section 5.3(e) of the Purchaser Disclosure Schedule, Purchaser and Parent shall take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any Competition and Foreign Investment Laws so as to enable the Pre-Closing Restructuring and the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate ~~Order,~~ Order or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, ~~Purchaser, and their respective Subsidiaries,~~ (ii) amending any joint venture or other arrangement of the Transferred Entities and (iiiii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred ~~Entities’~~ Entities or ~~their respective~~ Purchaser’s other Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Stock Purchase Agreement (CARRIER GLOBAL Corp)

Required Actions. (a) Purchaser and Parent shall use reasonable best efforts to ~~take, or cause to be taken, all actions, and~~ do, or cause to be done, all things necessary, proper or advisable under any applicable Antitrust Laws to consummate and make effective in an expeditious manner the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, (ii) ~~taking all actions necessary~~ using reasonable best efforts 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 reasonably required under any ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Antitrust Laws) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, and (iii) ~~the execution~~ using reasonable best efforts to execute and ~~delivery of~~ deliver any additional instruments necessary to consummate the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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~~ Agreement and the ~~other transactions contemplated by this Agreement~~Transactions. 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 or other such Person regarding the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, and ~~except as provided in Section 6.20,~~ 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 or other such Person. If any party to this Agreement or any ~~representative~~ 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~~Transactions, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response ~~in compliance with~~ to such request. Purchaser, on one hand, and Parent, 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 ~~Competition~~ Antitrust 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. Purchaser and Parent may, as each deems ~~in good faith to be~~ 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 Parent or by Parent 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 Parent, 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five~~ ten (510) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as ~~soon~~ promptly as ~~reasonably practicable, but in any event no later than eight (8) Business Days~~ practicable after the date of this Agreement, ~~those~~ any other filings and/or notifications ~~set forth (or, where applicable, drafts thereof) on Section 6.3(c)~~ under applicable Antitrust Laws. Neither Purchaser nor Parent shall agree with or commit to any Governmental Entity not to consummate or to delay the consummation of the ~~Purchaser Disclosure Schedule (collectively~~Transactions without the written consent of the other party, ~~the “Antitrust and Foreign Investment Filings”)~~which consent shall not be unreasonably refused, conditioned or delayed. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under any Antitrust ~~and Foreign Investment Filings~~Laws. ~~In connection therewith, if~~ If any Action is instituted challenging the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions as violative of any ~~applicable Competition~~ Antitrust Laws, Purchaser and Parent shall use ~~its~~ their 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 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~~ anything to the contrary contained in this Agreement, nothing in this Section 6.3 or otherwise in this Agreement shall require Purchaser ~~shall take all actions reasonably necessary~~ or its Subsidiaries or Affiliates to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable~~ (and ~~in any event no later than~~ Parent, the ~~Outside Date)~~Sellers and the Transferred Companies shall not, ~~including~~ and shall cause their Subsidiaries and Affiliates not to, without Purchaser’s prior written consent) (i) ~~agreeing~~ offer, propose, negotiate, agree to, ~~committing~~ commit to ~~and effecting~~or effect, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, ~~and~~ or their respective ~~Subsidiaries~~Subsidiaries or Affiliates, ~~and~~ (ii) otherwise ~~taking~~ take or ~~committing~~ commit to take any actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ or Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, ~~and~~ or their respective ~~Subsidiaries. In that regard Purchaser shall sell~~Subsidiaries or Affiliates or (iii) offer, ~~dispose of~~propose, ~~hold separate~~negotiate, ~~or otherwise take or~~ agree to, commit to ~~take~~ or effect any ~~action that limits its freedom~~ other remedy, condition, commitment or undertaking of ~~action with respect to, or Purchaser’s Subsidiaries’ ability to retain,~~ any ~~of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries~~kind. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees applicable to ~~obtain any consent~~the Transactions under the HSR Act and other Antitrust Laws. (f) Purchaser covenants and agrees that, ~~clearance, expiration~~ from the date of this Agreement through the earlier of the Closing Date or the termination of this Agreement, Purchaser shall not, and shall cause its Subsidiaries not to, directly or indirectly, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or Person or other business organization or division thereof, or, merge or consolidate with any other Person, if such transaction could reasonably be expected to prevent or cause a ~~waiting period, authorization, Order~~ material delay in the satisfaction of the conditions contained in Article IX or ~~approval pursuant to this Section 6.3~~the consummation of the Transactions.

Appears in 1 contract

Sources: Stock Purchase Agreement (Carlisle Companies Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms of this Agreement, Acquiror and ~~Parent~~ the Company each shall use reasonable best efforts to to: (i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other party in doing, all things ~~necessary, proper or advisable under any applicable Laws~~ reasonable to consummate and make effective ~~in an expeditious manner~~ the ~~Sale and the other~~ transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreementhereby as promptly as practicable, (ii) ~~taking all actions necessary to~~ as promptly as practicable, 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,~~ from any Governmental Entity ~~(which actions shall include furnishing all information required under any Competition Laws~~ or any other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule)~~ third party any consents, licenses, Permits, waivers, approvals, authorizations or orders required to be obtained or made by ~~Purchaser~~ Acquiror or ~~Parent~~ the Company or any ~~of their respective Subsidiaries~~ Subsidiary in connection with the ~~Sale~~ authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (iii) 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 Entity vacated or reversed, (iv) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement or the Merger required under any applicable Law and (v) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Acquiror and the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. Acquiror and the Company shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement. (b) In connection with and without limiting Section 6.02(a), the Company and the Company Board shall: (i) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any transaction contemplated by this Agreement, and (~~iii~~ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the ~~execution and delivery of any additional instruments necessary to consummate the Sale~~ Merger and the other transactions contemplated by this Agreement ~~and to fully carry out~~ may be consummated as promptly as practicable on the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 terms 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) ~~Purchaser~~ In connection with and ~~Parent shall file or cause to be filed~~without limiting Section 6.02(a), Acquiror and the Company shall, as promptly as ~~practicable, but~~ practicable and in ~~any~~ no event no later than five (5) Business Days after the date of this Agreement, ~~notifications~~ file a Premerger Notification and Report Form in accordance with the HSR Act and make any other necessary registrations, declarations, notices or filings, if any, necessary for Closing under any other federal, state or foreign Law designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization, restraint of trade or regulation of foreign investment (collectively “Antitrust Laws”). Acquiror and the Company shall cooperate and use reasonable best efforts, and cause each of their respective Subsidiaries to cooperate and use reasonable best efforts: (i) to secure the expiration or termination of any applicable waiting period under the HSR Act and any Consents of any Governmental Entity any other applicable Antitrust Laws as promptly as practicable and in any event prior to the Outside Date; (ii) to respond promptly to any requests of any Governmental Entity for information under any Antitrust Law and to resolve any objections asserted with respect to the transactions contemplated by this Agreement raised by any Governmental Entity, including any Second Request under the HSR Act; and (iii) to contest and resist any action, including any legislative, administrative or judicial action, and ~~Purchaser~~ to prevent the entry of any court order and ~~Parent shall file~~ to have vacated, lifted, reversed or ~~cause to be filed~~overturned any Judgment (whether temporary, ~~as soon as reasonably practicable~~preliminary or permanent) that restricts, ~~but in any event no later than eight (8) Business Days after~~ prevents or prohibits the ~~date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c)~~ consummation of the ~~Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by~~ Merger or any ~~Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the~~ other transactions contemplated by this Agreement ~~as violative~~ under any Antitrust Laws. The parties shall promptly inform the other of any ~~applicable Competition Laws~~written or oral communication received from any Governmental Entity relating to the transactions contemplated hereby (and if in writing, ~~Purchaser~~ furnish the other party with a copy of such communication, provided that if the party furnishing the copy designates it for outside counsel only, copies of the writings shall ~~use its~~ not be disseminated beyond outside counsel except with the permission of the party furnishing the same), and shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, responses, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Law. Such cooperation shall include, but not be limited to, the parties: (x) providing, in the case of oral communications or meetings with a Governmental Entity, advance notice of any such communication or meeting and, whether or not initiated by a party, an opportunity for the other party to participate; (y) providing, in the case of written communications, an opportunity for the other party to comment on any such communication (including the incorporation of such reasonable ~~best efforts~~ comments) and provide the other with a final copy of all such communications (except for documents or information that reveal any party’s negotiating objectives or strategies), which shall, where applicable, be provided under a joint defense agreement. (d) Notwithstanding the foregoing or any other provision of this Agreement to ~~initiate and/or~~ the contrary, in no event shall Acquiror or any Affiliate be obligated to litigate or participate in the litigation of any ~~Actions~~suit, claim, action or proceeding, whether judicial or administrative, ~~to (i) oppose or defend against any Action~~ brought by any Governmental ~~Entity~~ Entity: (A) challenging or seeking to ~~prevent~~ restrain or ~~enjoin~~ prohibit 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 consummation of the Sale~~ Merger or the other transactions contemplated by this Agreement, ~~including~~ or seeking to obtain from Acquiror or any of its Affiliates any damages in relation therewith; (B) seeking to prohibit or limit in any respect, or place any conditions on, the ownership or operation by ~~defending~~ the Company, Acquiror or any of their respective Affiliates of all or any portion of the business or assets or any product of the Company or its Subsidiaries or Acquiror or its Affiliates or to require any such ~~Action brought~~ Person to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any portion of the business or assets or any product of the Company or its Subsidiaries or Acquiror or its Affiliates, in each case as a result of or in connection with the Merger or any of the other transactions contemplated by this Agreement; (C) seeking to directly or indirectly impose limitations on the ability of Acquiror or any of its Affiliates to acquire or hold, or exercise full rights of ownership of, any shares of Company Stock or any shares of common stock of the Surviving Corporation or any of Acquiror’s Affiliates, including the right to vote Company Stock or the shares of common stock of the Surviving Corporation or any of Acquiror’s Affiliates on all matters properly presented to the stockholders of the Company, the Surviving Corporation or any of Acquiror’s Affiliates respectively, or (D) seeking to (1) directly or indirectly prohibit Acquiror or any of its Affiliates from effectively controlling in any respect any of the business or operations of the Subsidiaries or Acquiror’s subsidiaries or (2) directly or indirectly prevent the Company or its Subsidiaries or Acquiror or any subsidiary of Acquiror from operating any of their business in substantially the same manner as operated immediately prior to the date of this Agreement, nor shall Acquiror or any Affiliate be obligated to agree to any of the foregoing actions nor enter into any Consent Agreement with, or other Order by, any Governmental Entity providing for any of the foregoing. (e) In connection with the continuing operation of the business of the Company and the Subsidiaries between the date of this Agreement and the earlier of the termination of this Agreement and the Effective Time, subject to ~~avoid~~ applicable Law, the ~~entry of~~Company shall consult in good faith on a reasonably regular basis with Acquiror to report material, individually or in the aggregate, operational developments, material changes in the status of relationships with customers and resellers, material changes in the status of ongoing operations and other matters reasonably requested by Acquiror pursuant to procedures reasonably requested by Acquiror; provided, however, that no such consultation shall operate as a waiver or otherwise affect any representation, warranty, covenant, agreement or other provision in this Agreement, or ~~to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits~~ the ~~consummation~~ obligations of the ~~Sale~~ parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement. (f) Except as prohibited by applicable Law, the Company shall promptly notify Acquiror in writing of: (i) the occurrence of any matter or event that (1) is, or that is reasonably likely to be, a Material Adverse Effect, or (2) has resulted, or is reasonably likely to result, in (I) any representation and warranty of the Company set forth in this Agreement that is qualified as to materiality becoming untrue, (II) any such representation and warranty that is not so qualified becoming untrue in any material respect, or (III) any condition to the transactions contemplated hereby and set forth in Section 7.03 not being satisfied; (ii) the failure of the Company to perform in any material respect any obligation to be performed by it under this Agreement; (iii) any written notice or other written communication from any Person (other than a Governmental Entity) alleging that notice to or consent of such Person is required in connection with the Merger or the other transactions contemplated by this ~~Agreement resulting~~ Agreement, the failure with which to comply would result in any of the conditions set forth in Section 7.03 not being satisfied; (iv) any written notice or other written communication from any material customer, distributor or reseller to the effect that such ~~Action.~~customer, distributor or reseller is terminating or otherwise materially adversely modifying its relationship with Company or any Subsidiary as a result of the Merger or the other transactions contemplated by this Agreement; (ev) ~~Notwithstanding~~ any material written notice or other ~~provision~~ material written communication from any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement, and a copy of any such notice or communication shall be furnished to Acquiror; (vi) any written filing or written notice made by the Company with any Governmental Entity in connection with the Merger or the other transactions contemplated by this Agreement, and a copy of any such filing or notice shall be furnished to Acquiror; and (vii) any actions, suits, claims, investigations or proceedings commenced or, to the Knowledge of the Company, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that, if pending on the date of this Agreement, ~~Purchaser~~ would have been required to have been disclosed pursuant to Section 7.03(f) or that relate to the consummation of the Merger or the other transactions contemplated by this Agreement; (g) If any event occurs after the execution and delivery of this Agreement and prior to the Effective Time without breach by the Company of any of its obligations under this Agreement and such event results in a representation or warranty of the Company set forth in Article 3 being inaccurate, and if inclusion of such event in one or more sections of the Disclosure Letter would cause such representation or warranty to be accurate (a “Change”), the Company may propose in writing to Acquiror to update one or more sections of the Disclosure Letter to reflect the Change (an “Update Notice”). Following receipt of an Update Notice, Acquiror will make a reasonable good faith determination of whether the Change would reasonably be expected to cause the condition set forth in Section 7.03(a) not to be met, and as a result that the Acquiror would have a right to terminate this Agreement pursuant to Section 8.01(d) due to the occurrence of such Change were it not included in the Update Notice. If Acquiror determines that it would have a right to terminate under Section 8.01(d) due to the Change, Acquiror shall ~~take~~ have the right to reject the Update Notice and terminate this Agreement by giving written notice to the Company pursuant to such Section 8.01(d); provided, however, that if Acquiror does not terminate this Agreement pursuant to Section 8.01(d) following such determination, then the sections of the Disclosure Letter referred to in the Update Notice, as modified by the Update Notice, shall be deemed to be part of the Disclosure Letter for all ~~actions~~ purposes of this Agreement as though included therein as of the date of this Agreement. If, on the other hand, Acquiror makes a good faith determination that the Change would not reasonably ~~necessary~~ be expected to ~~avoid~~ give rise to a right to terminate this Agreement under Section 8.01(d), it shall notify the Company of that fact, and Acquiror shall thereafter have the option of whether or ~~eliminate each~~ not to accept the Update Notice, and ~~every impediment under~~ if it does not accept the Update Notice, the representations or warranties that would have been modified thereby will not be modified. The Stockholder Representative will not be deemed to have agreed to any ~~Competition Laws so~~ determination made by the Acquiror as to ~~enable~~ whether the ~~Closing~~ Change gives rise to ~~occur as promptly as practicable (and in any event no later than the Outside Date~~a right to terminate this Agreement pursuant to Section 8.01(d), ~~including (i) agreeing to, committing~~ and preserves his right to ~~and effecting,~~ contest any determinations made by ~~consent decree, hold separate Order, or otherwise,~~ the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken Acquiror pursuant to this ~~Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur~~provision. (fh) ~~Whether~~ Acquiror shall give prompt notice to the Company of: (A) any representation or warranty made by Acquiror or Merger Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Section 7.02(a) could not be satisfied or (B) the ~~Sale is consummated~~failure of Acquiror or Merger Sub to perform in any material respect any obligation to be performed by such party under this Agreement such that the conditions set forth in Section 7.02(b) could not be satisfied; provided, ~~Purchaser~~ however, that no such notification shall ~~be responsible for all filing fees~~ affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies with respect thereto) or the conditions to ~~obtain any consent, clearance, expiration or termination~~ the obligations of ~~a waiting period, authorization, Order or approval pursuant to~~ the parties under this ~~Section 6.3~~Agreement.

Appears in 1 contract

Sources: Merger Agreement (Teradata Corp /De/)

Required Actions. (a) ~~Purchaser and Parent~~ The Parties shall ~~use reasonable best efforts to~~ 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 consummate and make effective in an expeditious manner the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, registrations and notices ~~required~~ known to be ~~filed to~~ required consummate the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, (ii) taking all actions necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a any waiting period, authorization, ~~Order~~ order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all necessary information required under any ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c~~Antitrust Laws) ~~of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries~~ in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, and (iii) the execution and delivery of any additional instruments necessary to consummate the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions and to fully carry out the purposes of this Agreement. Additionally, each of ~~Parent and Purchaser~~ the Parties shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best effort to do, or cause to be done, all things ~~necessary, proper or advisable under any applicable Laws~~ necessary to ~~fulfill all~~ satisfy the closing conditions ~~precedent to this Agreement~~ set forth in Article III and shall ~~use reasonable best efforts~~ not to take any action ~~after~~ prior to the ~~date of this Agreement~~ Closing Date 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~~ order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, the Purchaser and ~~Parent~~ the Company shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, ~~Orders~~ orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality ~~Agreement and Section 6.2~~Agreement, to the extent not prohibited by applicable Law, each of ~~Parent~~ the Purchaser and ~~Purchaser~~ the Company, on behalf of itself and the other ▇▇▇▇ Entities, and the Seller Parties, shall promptly consult with the other ~~party~~ Parties to provide any ~~reasonably~~ 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,~~ Agreement or the ~~Sale and the other transactions contemplated by this Agreement~~Transactions. Subject to the Confidentiality ~~Agreement and Section 6.2~~Agreement, to the extent not prohibited by applicable Law, ~~each party to this Agreement~~ the Purchaser and the Company shall promptly inform the other ~~party to this Agreement~~Party, ~~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 ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ Party to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any ~~party to this Agreement~~ Party or ~~any~~ its 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~~Transactions, then such ~~party~~ Party will make, or cause to be made, promptly and after consultation with the other ~~party to this Agreement~~Parties, an appropriate response in compliance with such request. ~~Purchaser~~Except as otherwise required by applicable Law, ~~on one hand, and Parent, on the other hand,~~ no Party shall ~~not~~ participate in any meeting with any Governmental Entity in connection with this Agreement or the ~~Sale~~Transactions, or with any other Person in connection with any ~~Action~~ Proceeding by a private party relating to any ~~Competition~~ Antitrust Laws in connection with this Agreement or the ~~Sale~~Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other ~~party~~ Parties in advance and, to the extent not prohibited by such Governmental ~~Entity~~Entity or applicable Law, gives the other ~~party~~ Parties the opportunity to attend and participate thereat. Each of the Purchaser and ~~Parent may~~the Company, as each deems ~~in good faith to be~~ advisable and necessary, may 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~~ the Parties to ~~Parent or by Parent to Purchaser~~ each other pursuant to this Section ~~6.3~~7.4, 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns.legal (c) The Purchaser and ~~Parent~~ the Company shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five (5)~~ 5 Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) ~~Purchaser~~ The Purchaser, the Company, on behalf of itself and the other ▇▇▇▇ Entities, and the Seller Parties shall ~~use its best efforts~~ cooperate with each other to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings. In connection therewith~~Transactions under any Laws that are designed or intended to prohibit, ~~if any Action is instituted challenging~~ restrict or regulate actions having the ~~Sale~~ purpose or ~~the other transactions contemplated by this Agreement as violative~~ effect of ~~any applicable Competition Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial~~ monopolization or ~~administrative, to (i) oppose~~ lessening of competition through merger or ~~defend against any Action by any Governmental Entity to prevent~~ acquisition or ~~enjoin the consummation~~ restraint 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 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 Actiontrade. (e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, The Purchaser shall be responsible for and shall pay all filing and other similar fees to ~~obtain~~ any ~~consent~~Governmental Entity that are payable in connection with any filings or submissions under the HSR Act. (f) Each of the Purchaser and the Company, ~~clearance~~on behalf of itself and the other ▇▇▇▇ Entities, ~~expiration~~ and each Seller Party covenants and agrees that, from the Agreement Date through the earlier of the Closing or the termination of ~~a waiting period~~this Agreement, ~~authorization~~such Party shall not take any action that would reasonably be expected to prevent, ~~Order~~ delay or ~~approval pursuant to this Section 6.3~~impede the consummation of the Transactions.

Appears in 1 contract

Sources: Equity Purchase Agreement (Insight Enterprises Inc)

Required Actions. (a) Purchaser and Parent shall, and shall cause their respective Subsidiaries to, use their reasonable best efforts to promptly 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 consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) ~~the preparation~~ preparing and filing of all filings, forms, ~~registrations~~ registrations, and ~~notices~~ notifications required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, ; (ii) ~~taking all actions necessary~~ using reasonable best efforts to obtain (and ~~cooperating~~ cooperate with each other in obtaining) ~~any consent~~all consents, ~~clearance~~clearances, expiration or termination of a any waiting ~~period~~periods, ~~authorization~~authorizations, ~~Order~~ Orders or ~~approval~~ approvals of, or any ~~exemption~~ exemptions by, any Governmental ~~Entity~~ Entity, (~~which actions shall include furnishing all information required under~~ iii) defending any ~~Competition Laws~~ lawsuits or ~~any~~ other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c)~~ legal proceedings, whether judicial or administrative, challenging this Agreement or consummation of the ~~Disclosure Schedule) required to be obtained~~ Sale or ~~made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale and~~ the other transactions contemplated by this Agreement, and (~~iii~~iv) ~~the execution~~ executing and ~~delivery of~~ delivering 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~~ . (b) Purchaser and Parent ~~and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions~~shall, and doshall cause their respective Affiliates to, ~~or cause to be done~~file, ~~all things necessary~~as promptly as practicable, ~~proper or advisable under~~ but in any ~~applicable Laws to fulfill all conditions precedent to this Agreement and shall use reasonable best efforts not to take any action~~ event no later than ten (10) Business Days after the date of this ~~Agreement that would reasonably be expected~~ Agreement, notifications under the HSR Act, and to ~~materially delay the obtaining of~~make or file, ~~or result in not obtaining~~as promptly as practicable all other filings, ~~any consent~~forms, ~~clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by,~~ registrations and notifications with any Governmental Entity ~~necessary~~ required to be ~~obtained at~~ filed to consummate the Sale and the other transactions contemplated by this Agreement under any applicable Competition Law. Purchaser and Parent shall request early termination of any applicable waiting periods under the Competition Laws and, in the event that Purchaser or ~~prior~~ Parent receive a request for information or documentary material pursuant to the ~~Closing~~HSR Act or any other Competition Law (a “Second Request”), each will, and will cause their respective Affiliates to, use reasonable best efforts (and will cooperate with each other) to submit an appropriate response to such Second Request as promptly as practicable. (bc) ~~Prior~~ In furtherance of the covenants in this Section 5.3 and notwithstanding any other provision of this Agreement, (i) if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Competition Law, each of the parties hereto shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction, or other order, whether temporary, preliminary or permanent, that results from such action or proceeding and that prohibits, prevents or restricts consummation of the Sale on or before the Outside Date and (ii) Purchaser shall take all actions as may be necessary to avoid or eliminate each and every impediment under the HSR Act or any other applicable Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise (A) the sale, divestiture or disposition of or otherwise hold separate (including by establishing a trust or otherwise), any businesses, product lines, assets, or equity interests of the Transferred Entities, Purchaser, or their respective Subsidiaries, and (B) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its ability to operate and/or retain, any businesses, product lines, assets, or equity interests of the Transferred Entities, Purchaser, and their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.3(c) nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, (x) Parent shall not be obligated to take or agree or commit to take any such action (1) that is not conditioned on the Closing, or (2) that relates to or impacts the Retained Businesses and (y) the obligations set out under Section 5.3(c)(ii) are limited to Purchaser, the Transferred Entities and their respective Subsidiaries. (d) Purchaser and Parent shall cooperate and consult with each other in connection with the making of all filings, notifications, communications, submissions, and any other actions pursuant to this Section 5.3, and, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other ~~reasonably~~ apprised on a current basis of the status of matters relating to the completion of the Sale and the other transactions contemplated by this ~~Agreement~~ Agreement, including promptly furnishing the other with copies of notices or other communications received by Purchaser and ~~work cooperatively in connection with obtaining all required consents~~Parent, ~~clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of~~as the case may be, or any ~~exemptions by~~of their respective Affiliates, from any third party and/or any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably necessary information Entity 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~~ or the other transactions contemplated by this Agreement. Subject to applicable Law relating to the exchange of information (including the Confidentiality ~~Agreement~~ Agreement), Purchaser and ~~Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement~~ Parent shall ~~promptly inform~~ permit counsel for 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, permit the other party a reasonable opportunity to review ~~and discuss~~ in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or ~~oral communication or submission with or~~ submissions 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, on one hand, and Parent, 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 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~~. Purchaser and Parent may, as each deems ~~in good faith to be~~ 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 Parent or by Parent to Purchaser pursuant to this Section 6.3~~materials, and the information contained therein, shall be given only to the outside legal counsel of the recipient involved in the Sale and the other transactions contemplated by this Agreement and shall not be disclosed by such outside counsel ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless ~~express~~ written permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) or its legal ~~counsel~~counsel in advance of it being shared; 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns~~. (c)~~ . Purchaser and Parent shall ~~file or cause to be filed, as promptly as practicable, but~~ not participate in any ~~event no later than five~~ meeting (5whether in-person, by telephone, or otherwise) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by with any Governmental Entity in connection with ~~respect~~ this Agreement or the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to the ~~Antitrust and Foreign Investment Filings. In~~ HSR Act or any other applicable Competition Laws in connection ~~therewith, if any Action is instituted challenging the Sale~~ with this Agreement or the Sale, unless it consults with the other ~~transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate~~ party in ~~any Actions, whether judicial or administrative~~advance and, to ~~(i) oppose or defend against any Action~~ the extent not prohibited by ~~any~~ such Governmental ~~Entity to prevent or enjoin the consummation of the Sale or~~ Entity, gives the other ~~transactions contemplated by this Agreement and/or (ii) take such action as necessary~~ party the opportunity 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 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 Actionattend and participate thereat. (e) ~~Notwithstanding any other provision of this Agreement,~~ Purchaser ~~shall take all actions reasonably necessary~~ agrees to ~~avoid or eliminate each~~ provide such security and ~~every impediment under any Competition Laws so~~ assurances as to ~~enable~~ financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose consent or approval is sought in connection with the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiariestransactions contemplated hereby. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) 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 any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.3. Section 5.5 or Section 5.22, other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Purchase Agreement (Servicemaster Global Holdings Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Parent~~ conditions set forth in this Agreement, Parent, Acquirer and the Company shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all ~~actions,~~ actions and do, or cause to be done, all things reasonably necessary, proper or advisable under any ~~applicable~~ Applicable Laws to consummate and make effective in an the most expeditious manner possible the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~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~~ Order, non-objection or approval of, or any exemption by, any Governmental ~~Entity (which actions shall include furnishing all information~~ Authority required ~~under any Competition Laws~~ or ~~any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required~~ advisable to be obtained or made by ~~Purchaser~~ Acquirer or ~~Parent~~ the Company or any of their respective ~~Subsidiaries~~ Affiliates in connection with the ~~Sale and~~ Transactions (including, for the ~~other transactions contemplated by this Agreement~~avoidance of doubt, the Required Approvals), and (iii) the execution and delivery of any additional instruments necessary to consummate the ~~Sale and the other transactions contemplated by this Agreement~~ Transactions and to fully carry out the purposes of this Agreement. ~~Additionally, each~~ Each of Parent and ~~Purchaser~~ the Company shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all ~~actions,~~ actions and do, or cause to be done, all things reasonably necessary, proper or advisable ~~under any applicable Laws~~ to fulfill all conditions ~~precedent to this Agreement~~ set forth in Article 9. Each of Parent, Acquirer and the Company shall not, and shall ~~use reasonable best efforts~~ cause its respective Affiliates not to 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~~ Order, non-objection or approval of, or any exemption by, any Governmental ~~Entity~~ Authority necessary to be obtained at or prior to the ~~Closing~~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, 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 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 failure to satisfy, or any material delay in satisfying, any condition set forth in Article 9. (b) Prior to the Closing, to the extent not prohibited by ~~applicable~~ Applicable Law, ~~Purchaser~~ Acquirer and ~~Parent~~ the Company shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the ~~Sale~~ 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 ~~transactions contemplated by this Agreement~~ 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~~ Orders, non-objections or approvals of, or any exemptions by, any Governmental ~~Entity~~Authority. In that regard, ~~prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law,~~ each of ~~Parent~~ Acquirer and ~~Purchaser~~ the Company shall (i) promptly ~~consult with~~ provide any information and assistance as the other ~~party to provide any~~ Party may reasonably ~~necessary information~~ request with respect to ~~(and~~all notices, ~~in the case of correspondence, provide the other party (~~submissions or ~~their counsel) copies of) all~~ filings made by or on behalf of such ~~party~~ Party or any of its Affiliates with any Governmental ~~Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity~~ Authority in connection with this ~~Agreement, the Sale~~ Agreement and the ~~other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement~~ Transactions, and ~~Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall~~ (ii) promptly inform the other ~~party to this Agreement~~Parties, and if in writing, furnish the other ~~party~~ Party with copies of (or, in the case of oral communications, advise the other ~~party~~ Party of) any material communication from or to any Governmental ~~Entity or other such Person~~ Authority regarding the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, and ~~except as provided in Section 6.20,~~ permit the other party to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed material written or oral communication or submission with or to any such Governmental ~~Entity~~ 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 ~~other such Person~~jeopardize protection of attorney client privileges. 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, on one hand, and Parent, on the other hand, No Party shall ~~not~~ participate in any meeting with any Governmental ~~Entity~~ Authority in connection with this Agreement or the ~~Sale~~Transactions, or with any other Person in connection with any ~~Action~~ Proceeding by a private ~~party~~ Party relating to any ~~Competition~~ Antitrust Laws, Foreign Investment Laws or Required Approvals in connection with this Agreement or the ~~Sale~~Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other ~~party~~ Party in advance and, to the extent not prohibited by such Governmental ~~Entity~~Authority, gives the other ~~party~~ Party the opportunity to attend and participate thereat. ~~Purchaser~~ Notwithstanding the foregoing, Acquirer and ~~Parent~~ the Company may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive or otherwise commercially confidential material provided to the other ~~party~~ Party under this Agreement as “outside counsel only.” Such designated materials ~~and any materials~~ provided by ~~Purchaser~~ Acquirer to ~~Parent~~ the Company or by ~~Parent~~ the Company to ~~Purchaser~~ Acquirer pursuant to this Section ~~6.3~~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 ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Acquirer or ~~Parent~~the Company, 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~~Company, (ii) as necessary to comply with ~~contractual confidentiality arrangements and~~ Applicable Law, (iii) as necessary to address reasonable privilege ~~concerns~~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) ~~Purchaser~~ Parent, Acquirer and ~~Parent~~ 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 ~~five~~ twenty (520) 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 its respective 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~~, notifications under the HSR Act~~), and ~~Purchaser~~ shall supply as promptly as practicable any additional information and ~~Parent shall file or cause~~ documentary materials that may be reasonably requested in respect of any Required Approvals and, subject to ~~be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after~~ the ~~date~~ terms and conditions of this Agreement, ~~those~~ shall use its respective reasonable best efforts to take all other ~~filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c)~~ actions necessary to cause the expiration or termination of the ~~Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~applicable waiting periods or to obtain Consents under such Required Approvals. (d) ~~Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by~~ If any ~~Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action~~ Proceeding is instituted (or threatened in writing to be instituted) challenging the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions as violative of any Applicable Law, including any applicable ~~Competition~~ Antitrust Laws or any applicable Foreign Investment Laws, ~~Purchaser~~ Parent, Acquirer and the Company shall jointly (to the extent practicable) use ~~its reasonable~~ their best efforts to initiate and/or participate in any ~~Actions~~Proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ Proceeding by any Governmental ~~Entity~~ Authority to prevent or enjoin the consummation of the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions and/or (ii) take such action as necessary to overturn any regulatory ~~Action~~ Proceeding by any Governmental ~~Entity~~ Authority to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, including by defending any such ~~Action~~ Proceeding brought by any Governmental ~~Entity~~ 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 ~~Sale or the other transactions contemplated by this Agreement~~ Transactions resulting from any such ~~Action~~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) ~~Notwithstanding any other provision of this Agreement~~Parent and Acquirer shall, ~~Purchaser~~ and shall cause its Affiliates to, use its reasonable best efforts to take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under Applicable Law, including any ~~Competition~~ applicable Antitrust Laws or any applicable Foreign Investment Laws, so as to enable the Closing to occur as promptly as ~~practicable (and in any event no later than the Outside Date)~~practicable, including (i) ~~agreeing to~~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 ~~Transferred Entities~~Company, ~~Purchaser,~~ Parent and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit ~~Purchaser~~Acquirer’s, the ~~Transferred Entities’~~ Company’s or their respective ~~Subsidiaries~~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 ~~Transferred Entities~~Company, ~~Purchaser,~~ Acquirer and their respective ~~Subsidiaries~~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 8.01 and the “reasonable best efforts” standard set forth herein, shall require or be construed to 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. ~~In that regard Purchaser shall sell~~Without the prior written consent of Parent or Acquirer (such consent or non-consent to be consistent with, ~~dispose of~~and subject to, ~~hold separate~~the obligations of Parent or Acquirer set forth in Section 8.01), ~~or otherwise~~ the Company and its Subsidiaries will not take or ~~commit~~ agree to take any Remedy Action in connection with Applicable Laws, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, regardless of whether such action would constitute a Burdensome Condition. In addition, in no event shall the Parties be required to proffer, consent to or agree to or effect any Remedy Action that ~~limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any~~ is not conditioned upon the closing of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurTransactions. (f) Prior to the First Effective Time, each Party shall, and shall cause its Affiliates to, use its reasonable best efforts to obtain, and to cooperate in obtaining, all material Consents from Persons (other than any Governmental Authority) necessary or appropriate to permit, or otherwise triggered by, the consummation of the Transactions; provided, however, that, with respect to seeking or obtaining any such Consents, the Parties (and their respective Affiliates) shall not be required to undertake any extraordinary measures, including (i) the waiver of any condition 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. Whether or not the ~~Sale is~~ Transactions are consummated, ~~Purchaser~~ 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 ~~obtain any consent~~the terms and conditions set forth in this Agreement, ~~clearance, expiration or termination~~ without limiting the generality of ~~a waiting period, authorization, Order or approval~~ the undertakings of the Parties pursuant to this Section ~~6.3~~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, 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 connection with any other transactions involving the Company or its Subsidiaries requiring FINRA approval prior to the Closing.

Appears in 1 contract

Sources: Merger Agreement (Aon PLC)

Required Actions. (a) ~~Purchaser~~ Purchaser, Everest, Olympus and ~~Parent~~ Trango (and for the purpose of this Section 7.6, references to Trango, shall to the extent any other Seller is requested, requisitioned or otherwise required by a Governmental Entity to participate in any of the following, include any such other Seller) shall use its reasonable ~~best efforts~~ endeavors to 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 consummate and make effective in an the most expeditious manner possible the ~~Sale and the other transactions contemplated by this Agreement~~Sale, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale ~~and~~ or otherwise required by any Party or any of its Affiliates under applicable Law in relation to this Agreement or the ~~other transactions contemplated by this Agreement~~Sale, (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~~ Order, confirmation of non-objection or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under ~~any Competition Laws or any other~~ applicable ~~Laws relating to~~ Laws, including Antitrust Laws, and in connection with the ~~filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Approvals) required or advisable to be obtained or made by ~~Purchaser~~ Purchaser, Everest, Olympus or ~~Parent~~ any Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with this Agreement or the ~~Sale and the other transactions contemplated by this Agreement~~Sale, 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 Parent~~ Purchaser, Everest, Olympus and ~~Purchaser~~ Trango shall use its reasonable ~~best efforts~~ endeavors to 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~~ Law to ~~fulfill~~ fulfil all conditions precedent to this Agreement and shall use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ClosingAgreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Everest, Olympus and ~~Parent~~ Trango shall each keep the other ~~reasonably~~ 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 or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, ~~Orders~~ Orders, confirmations of non-objection or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~7.5, to the extent not prohibited by applicable Law, each of ~~Parent~~ Purchaser, Everest, Olympus and ~~Purchaser~~ Trango shall promptly consult with ~~the~~ each other ~~party~~ to provide any necessary or reasonably ~~necessary~~ requested information with respect to (and, in the case of correspondence, provide ~~the~~ each other ~~party~~ (or their counsel) copies of) all filings made by such ~~party~~ Party with any Governmental Entity or any other information supplied by such ~~party~~ Party to, or correspondence with, a Governmental Entity in connection with this ~~Agreement, the Sale~~ Agreement and the ~~other transactions contemplated by this Agreement~~Sale. Subject to the Confidentiality Agreement and Section ~~6.2~~7.5, to the extent not prohibited by applicable Law, each ~~party to this Agreement~~ of Purchaser, Everest, Olympus and Trango shall promptly inform ~~the other party to this Agreement~~each other, and if in ~~writing~~the case of written communication, furnish ~~the~~ each other ~~party~~ with copies of (or, in the case of oral communications, advise ~~the~~ each other ~~party~~ orally of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Sale, and ~~except as provided in Section 6.20,~~ permit ~~the~~ each other ~~party~~ to review and discuss in advance, and consider in good faith ~~the~~ each other’s views ~~of the other party~~ in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any ~~party~~ Party to this Agreement or any representative of such ~~party~~ 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~~Sale, then such ~~party will~~ Party shall make, or cause to be made, promptly and after consultation with ~~the other party to this Agreement~~Purchaser, Everest and Olympus, an appropriate response in compliance with such request. ~~Purchaser, on one hand, and Parent, on the other hand,~~ No 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~~ proceeding or Action, inquiry, audit, notice of violation, summons, subpoena or investigation by a private party relating to any ~~Competition~~ applicable Antitrust Laws in connection with this Agreement or the ~~Sale~~Sale or to the Regulatory Approvals, or make oral submissions at meetings or in telephone or other conversations, unless it consults with ~~the~~ each other ~~party~~ Party in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the~~ each other ~~party~~ Party the opportunity to attend and participate thereat, provided, that a Party may communicate with a Governmental Entity in the ordinary course regarding the status of any pending Regulatory Approval without providing advance notice to each other Party (except where such communication includes a material update to a Governmental Entity), but shall thereafter provide a copy of the communication to such other Parties. Subject to the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each Party shall furnish Purchaser, Everest and Olympus with copies of all correspondence, filings, submissions and communications between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale, and furnish Purchaser, Everest and Olympus with such necessary information and reasonable assistance as Purchaser, Everest or Olympus, as applicable, may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and ~~Parent~~ Olympus, and consistent with its obligations hereunder, have principal discretion in devising and implementing the strategy for obtaining Regulatory Approvals, including making the final determination as to whether and when to submit any voluntary or discretionary notifications or filings in connection with this Agreement or the Sale under any Antitrust Law to Governmental Entities in any of the jurisdictions where the net revenue of Purchaser for the fiscal year 2018 exceeded $10 million (the “Specified Jurisdictions”); provided, that Purchaser shall use its reasonable best endeavours to expedite the conclusion of any investigation of the Sale under any Antitrust Law; provided, further, that none of Everest, Olympus or any of their respective Subsidiaries or any director of Everest, Olympus or any of their respective Subsidiaries shall be obligated to make or refrain from making any notification or filing to any Governmental Entity in circumstances where they believe (acting reasonably) it would be a breach of their obligations under applicable Law to make or refrain from making (as the case may be) such notification or filing. Notwithstanding anything to the contrary herein, Purchaser shall, following good faith consultation with Everest and Olympus, and consistent with its obligations hereunder, have principal discretion in determining the form and content of, and when to submit, any applications, notifications or filings in relation to a Regulatory Approval and any of the notifications set forth in the column headed “Pre-completion Notice Required” at of Section 7.6(b) of the Olympus Disclosure Schedule (each, a “Regulatory Notification”). Purchaser, Everest and Olympus may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Parties under this Agreement as “outside counsel only”, “outside antitrust counsel only”, “outside regulatory counsel only” or “outside counsel/corporate in-house antitrust and regulatory counsel only.” Such designated materials and any materials provided by ~~Purchaser to Parent~~ Purchaser, Everest or ~~by Parent to Purchaser~~ Olympus pursuant to this Section ~~6.3~~7.6, and the information contained therein, shall be given only to the ~~outside~~ designated legal counsel of the recipient and shall not be disclosed ~~by such outside counsel and in-house counsel~~ to ~~employees (~~any other ~~than in-house counsel), officers or directors of the recipient~~ Person unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Purchaser, Everest or ~~Parent~~Olympus, 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~~Everest and/or Olympus, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns.. 119 (c) ~~Purchaser~~ Purchaser, Everest and ~~Parent~~ Olympus shall file or cause to be ~~filed~~filed (as applicable) (i) any filings and/or notifications required under applicable Antitrust Laws or in connection with the Regulatory Approvals, (ii) the Regulatory Notifications and (iii) any voluntary or discretionary notifications or filings as promptly as practicable, but in any event any final notifications or, where a draft must be filed prior to the final notification, initial draft notifications of any other filings shall be submitted no later than ~~five (5)~~ the earlier of the applicable statutory deadline and 20 Business Days after the date of this ~~Agreement~~AgreementEffective Date (unless the applicable notification or filing is not required to be made until after the Closing). In the event that Purchaser, ~~notifications under~~ Everest or Olympus receives a request for additional information or documentary materials after an initial notification pursuant to any applicable Antitrust Law or in connection with any of the ~~HSR Act~~Regulatory Approvals, the applicable Party shall use its respective reasonable endeavors to certify compliance with such requests, as applicable, as promptly as practicable and advisable, and ~~Purchaser and Parent~~ counsel for the Parties shall ~~file~~ closely cooperate during the entirety of any such investigatory or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)review process. (d) ~~Purchaser~~ Each of Purchaser, Everest and Olympus shall use its ~~best efforts~~ reasonable endeavors to resolve as promptly as practicable such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale under any applicable Antitrust ~~and Foreign Investment Filings~~Laws or in connection with any of the Regulatory Approvals. In connection therewith, if any ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation is instituted (or threatened to be instituted) challenging the Sale ~~or the other transactions contemplated by this Agreement~~ as violative of any applicable ~~Competition~~ Laws, ~~Purchaser~~ Purchaser, Everest and Olympus shall jointly (to the extent practicable) use ~~its~~ their respective reasonable ~~best efforts~~ endeavors to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation 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~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Sale, including by defending any such ~~Action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation 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, inquiry, audit, notice of violation, summons, subpoena or investigation. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement~~the foregoing, Purchaser shall take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition~~ Antitrust Laws and in connection with any of the Regulatory Approvals so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of ~~the Transferred Entities~~Everest, ~~Purchaser,~~ Olympus and their respective ~~Subsidiaries,~~ Affiliates and (ii) otherwise taking or committing to take actions that after the Closing would limit ~~Purchaser~~Everest’s, ~~the Transferred Entities’~~ Olympus’s or any of their respective ~~Subsidiaries~~Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of ~~the Transferred Entities~~Everest, ~~Purchaser, and~~ Olympus or their respective ~~Subsidiaries~~Affiliates. In that regard Purchaser shall ~~sell~~and, ~~dispose of~~if requested by Purchaser, ~~hold separate~~Everest or Olympus shall (but, ~~or otherwise take or commit~~ subject to each Party’s obligations under this Agreement, including this Section 7.6, and if not so requested by Purchaser shall not), agree to take any action ~~that limits its~~ with respect to the Everest Business or the Olympus Business, including agreeing to or otherwise effecting any sale, divestiture, license, hold separate arrangement, or any limitation or restriction on the freedom of action with respect toto such businesses and assets; provided, that Purchaser shall not be obligated to take or ~~Purchaser’s Subsidiaries’ ability~~ agree or commit to ~~retain~~take, and neither Everest nor Olympus shall discuss, propose, agree or commit to take, any of such action that is not conditioned on the ~~businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries~~Closing. No actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~7.6(e) shall be considered for purposes of determining whether a ~~Business~~ Material Adverse Effect has occurred or may occur. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Purchaser be obligated to, and Everest and Olympus shall not agree with a Governmental Entity without the prior written consent of Purchaser, to (A) divest, hold separate, license, or otherwise encumber the assets or businesses of Everest, Olympus or their respective Affiliates if such actions, individually or in the aggregate, would be material to the financial condition, business or results of operations of Everest and its Subsidiaries, taken as a whole, or material to the financial condition, business or results of operations of Olympus and its Subsidiaries, taken as a whole, or (B) divest, hold separate, license, accept any operational modification or restriction with respect to or otherwise encumber the assets or businesses of Purchaser or its Subsidiaries. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Deed (WEX Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ the Sellers shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an the most expeditious manner possible the ~~Sale and the other~~ transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other~~ transactions contemplated by this Agreement, (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 ~~any Competition Laws~~ the HSR Act or any other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Competition Laws) required to be obtained or made by Purchaser or ~~Parent~~ the Sellers or any of their respective ~~Subsidiaries~~ 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 ~~Parent~~ the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and to 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~~ and, unless otherwise required by Law or this Agreement, shall use reasonable best ~~efforts~~ effort to 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ the Sellers shall each keep the ~~other~~ others reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, ~~each of Parent~~ Purchaser and ~~Purchaser~~ the Sellers shall promptly consult with ~~the~~ each other ~~party~~ to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ parties (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~~ Agreement and the ~~other~~ transactions contemplated ~~by this Agreement~~hereby. Subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, ~~each party to this Agreement~~ Purchaser and Seller shall promptly inform the other ~~party~~ parties to this Agreement, and if in writing, furnish the other ~~party~~ parties with copies of (or, in the case of oral communications, advise the other ~~party~~ parties orally of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other~~ transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ parties to review and discuss in advance, and consider in good faith the views of the other ~~party~~ parties in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~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 will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other ~~party~~ parties to this Agreement, ~~an appropriate~~ a response in compliance with such request. Purchaser, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.such

Appears in 1 contract

Sources: Stock Purchase Agreement (Middleby Corp)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall, and shall cause their respective Affiliates to, use reasonable best efforts to ~~take, or cause to be taken,~~ 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 ~~in an expeditious manner the~~ as soon as reasonably practicable each Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate ~~the~~ 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 ~~any Competition Laws~~ the HSR Act or any other applicable Competition Laws ~~relating~~ or under the FPA or with respect to ~~the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~any other Required Approval) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with ~~the~~ such Sale and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate ~~the~~ such Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of ~~Parent~~ Seller and Purchaser shall, and shall ~~use reasonable best efforts to~~ cause their respective Affiliates to, take, or cause to be taken, all actions, and do, or cause to be done, all things reasonably necessary, proper or advisable ~~under any applicable Laws~~ to fulfill all conditions ~~precedent to this Agreement~~ set forth in Article VII and ~~shall use reasonable best efforts~~ 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 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 ~~Closing~~failure to satisfy, or any delay in satisfying, any condition set forth in Article VII. Without limiting the 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 ~~the~~ each Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the ~~Sale~~ 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~~Entity or other Person. In that regard, prior to ~~the~~ a Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ 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 ~~6.2~~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 ~~material~~ communication from any Governmental Entity ~~or other~~ regarding such ~~Person regarding the~~ Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person~~Entity. If any party to this Agreement or any ~~representative~~ Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to ~~the~~ such Sale or the other transactions contemplated by this Agreement, then such party ~~will~~ 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, on one hand,~~ Each of Purchaser and ~~Parent, on the other hand,~~ Seller shall not participate in any meeting with any Governmental Entity in connection with this Agreement or ~~the~~ 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 ~~the~~ a Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with ~~the other party~~ Seller or Purchaser (as applicable) in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the other party~~ 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~and any materials~~ provided by Purchaser to ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~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~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be ~~filed~~filed (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than three (3) Business Days after the 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 ~~under the HSR Act, and Purchaser and Parent shall file or cause to be filed,~~ required in respect of any other Required Approvals as ~~soon~~ promptly as ~~reasonably~~ practicable, but in any event no later than ~~eight~~ ten (8) 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, ~~those~~ or a request for additional information from FERC or any other ~~filings and/or notifications set forth (or~~Governmental Entity in connection with any other Required Approvals, ~~where~~ the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, ~~drafts thereof)~~ as promptly as possible and produce documents, responses to interrogatories, or other information on ~~Section 6.3(c)~~ a rolling basis, and counsel for both parties shall closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to a Sale and the ~~Antitrust and Foreign Investment Filings~~other transactions contemplated by this Agreement under any applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging ~~the~~ a Sale or the other transactions contemplated by this Agreement as violative of any applicable ~~Competition Laws~~Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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~~ such 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~~ such 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 shall cause its Affiliates to, take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under ~~any Competition Laws~~ applicable Law, so as to enable ~~the~~ each Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~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 ~~Subsidiaries~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective SubsidiariesAffiliates. No actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur, except to the extent caused by Seller’s breach of its covenants hereunder. 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 applicable Closing or (B) that relates to the Retained Businesses, and in no event shall Seller or any of 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 assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity whose 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 ~~the~~ 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 ~~6.3~~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 otherwise constituting Losses arising from any breach of a representation or covenant by Seller hereunder.

Appears in 1 contract

Sources: Equity Purchase Agreement (REV Renewables, Inc.)

Required Actions. (a) Each of Purchaser Guarantor, Purchaser and Parent shall use reasonable best efforts to 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 consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ 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 any ~~Competition Laws or~~ applicable Regulatory Laws) required under any ~~other~~ applicable Laws ~~relating to the filings~~ and/or ~~notifications set forth on Section 6.3(c) of the Disclosure Schedule) required~~ by this Agreement to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 ~~Parent~~ Parent, Purchaser Guarantor and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ not to take any action after the date of this Agreement that would reasonably be expected to ~~materially~~ (x) 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~~Closing or (y) cause any of the conditions precedent to the transactions contemplated by this Agreement to fail to be satisfied or to prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and ~~work cooperatively~~ reasonably cooperate 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 Section ~~6.2~~5.1(e), to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ Party shall promptly consult with the other ~~party~~ Parties to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Parties (or their counsel) copies of) all filings made by such ~~party~~ Party with any Governmental Entity or any other information supplied by such ~~party~~ 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~~5.1(e), to the extent not prohibited by applicable Law, each ~~party~~ Party to this Agreement shall promptly inform the other ~~party~~ Parties to this Agreement, and if in writing, furnish the other ~~party~~ Parties with copies of (or, in the case of oral communications, advise the other ~~party~~ Parties of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ Parties to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Parties in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any ~~party~~ Party to this Agreement or any representative of such ~~party~~ 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~~ Party will make, or cause to be made, promptly and after good faith consultation with the other ~~party~~ Parties to this Agreement, ~~an appropriate~~ a substantially complete response in compliance with such request. ~~Purchaser, on one hand, and Parent, on the other hand,~~ No Party shall ~~not~~ participate in any meeting with any Governmental Entity in connection with this ~~Agreement or~~ Agreement, the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to any ~~Competition~~ applicable Regulatory Laws in connection with this ~~Agreement or~~ Agreement, the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other ~~party~~ Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ Parties the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.1(e), to the extent not prohibited by applicable Law, each Party shall furnish the other Parties 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 Parties with such necessary information and reasonable assistance as the other Parties 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 Parent may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Parties under this Agreement as “outside counsel/corporate in-house counsel only.” Such designated ~~materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3~~materials, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house counsel of the recipient involved in the Sale and the other transactions contemplated by this Agreement and shall not be disclosed by such outside counsel and corporate in-house counsel to employees (other than corporate in-house counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file ~~or cause to be filed,~~ any filings and/or notifications under applicable Regulatory Laws as promptly as ~~practicable~~reasonably possible, ~~but~~ and in any event ~~no later than five~~ within (5i) fifteen (15) Business Days after the date ~~of this Agreement,~~ hereof for filings and/or notifications required under ~~the HSR Act,~~ Korean Regulatory Laws and ~~Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight~~ (8) ii) forty five (45) Business Days after the date of hereof for filings and/or notifications required under any non-Korean Regulatory Laws. Notwithstanding anything to the contrary in this Agreement, ~~those other~~ no Party shall make any filings and/or notifications ~~set forth~~ under applicable Regulatory Laws in any jurisdiction, other than a Required Approval, unless Purchaser and Parent mutually agree that such filing and/or notification is necessary or advisable (orand neither Purchaser nor Parent shall unreasonably refuse to agree). In the event that the Parties receive any request for information or documentary material from any Governmental Entity, ~~where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively~~including a request for additional information or documentary materials pursuant to any applicable Regulatory Laws, the ~~“Antitrust~~ Parties shall comply with such requests as promptly as possible and ~~Foreign Investment Filings”)~~produce documents, responses to interrogatories, witnesses for deposition, or other information on a rolling basis, and the Parties and their respective counsel will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Parent shall ~~use its best efforts~~ in good faith attempt to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any ~~Action~~ claim, action, suit, arbitration, litigation and proceeding, investigation or Order (collectively, “Regulatory Action”) is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable ~~Competition~~ Regulatory Laws, Purchaser and Parent shall ~~use its reasonable best efforts to~~ jointly initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, to (i) initiate, oppose or defend against any Regulatory 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~~ Regulatory Action by any Governmental Entity to block consummation of the Sale or the other transactions contemplated by this ~~Agreement~~Agreement in each case to the extent necessary so as to enable the Closing to occur as promptly as possible, including by defending any such Regulatory 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 Regulatory Action. (e) ~~Notwithstanding any other provision~~ In furtherance of this Section 5.3 and notwithstanding anything to the contrary in this Agreement, Purchaser shall and shall cause its Affiliates to take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any ~~Competition Laws~~ applicable Regulatory Laws, so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the ~~Transferred Entities’~~ Company’s or their respective Subsidiaries’ freedom of action with respect ~~to, or its or their ability~~ to ~~retain,~~ any businesses, product lines or assets of the ~~Transferred Entities~~Company, Purchaser, and their respective ~~Subsidiaries~~Subsidiaries and Affiliates. ~~In that regard~~ Notwithstanding the foregoing sentence or anything to the contrary in this Agreement, nothing in this Agreement shall require Purchaser ~~shall~~ or its Affiliates to agree or commit to, and, without Purchaser’s prior written consent, Parent may not agree or commit to, sell, ~~dispose of~~divest, hold separate, or otherwise ~~take~~ convey any asset or ~~commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any~~ business of the ~~businesses~~Company, ~~product lines or assets of the Transferred Entities, Purchaser,~~ Purchaser or any of their respective Affiliates or Subsidiaries. No All such efforts by Purchaser shall be unconditional, and no actions required ~~to be~~ by or taken pursuant to this Section ~~6.3(e~~5.3(e) nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur~~. (f) Whether~~ . Notwithstanding anything to the contrary herein, none of Parent or ~~not the Sale is consummated, Purchaser~~ any of its Affiliates shall be ~~responsible for all filing fees~~ required to ~~obtain~~ take or permit the taking of any ~~consent, clearance, expiration or termination of a waiting period, authorization, Order or approval~~ action pursuant to this Section ~~6.3~~5.3 that would: (i) require Parent or any of its Affiliates (other than the Company) to agree to retain any or all of the Company or the Business after the Closing, other than the Retained Interest or (ii) require Parent, the Company or any of Parent’s or the Company’s respective Affiliates take or agree or commit to take any action that is not conditioned on the Closing or that relates to or impacts the Retained Businesses or Parent’s (or its designated Affiliates’) ownership of, or rights or obligations in connection with, the Retained Interest.

Appears in 1 contract

Sources: Securities Purchase Agreement (Ebay Inc)

Required Actions. (a) Seller and Purchaser will, and ~~Parent shall~~ will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, its Affiliates or the Business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Companies to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section 5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business. (c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of the Parties’ covenants and agreements under Section 5.5(a) and Section 5.5(b), but subject to the limitations of Section 5.5(d), the Parties shall, and shall cause their respective Affiliates to, take, or cause to be taken, any and 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 an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 steps and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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~~ any and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity all undertakings solely with respect to the ~~Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale~~ Companies or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably Business necessary to avoid or eliminate each and every impediment ~~under~~ asserted by any ~~Competition Laws~~ Governmental Entity in connection with obtaining the Required Regulatory Approvals, so as to enable the Closing to occur as promptly as ~~practicable~~ practicable, including, solely with respect to the Companies or the Business, (~~and in~~ A) agreeing to conditions imposed by, or taking any ~~event no later than~~ action required by, any Governmental Entity, (B) defending through litigation on the ~~Outside Date)~~merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (iC) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate ~~Order,~~ order or otherwise, the sale, ~~divestiture~~ divestiture, licensing or disposition of any ~~businesses, product lines or~~ assets of the ~~Transferred Entities~~Companies or the Business, ~~Purchaser~~including entering into customary ancillary agreements relating to any such sale, ~~and their respective Subsidiaries~~divestiture, licensing or disposition, and (iiD) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Order, whether temporary, preliminary or permanent, that ~~limits its freedom~~ is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of ~~action~~ any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with ~~respect to~~or delaying the Closing, in each case as may be required in order to obtain the Required Regulatory Approvals or to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s ~~Subsidiaries’ ability~~ obligations under this Section 5.5. (d) Notwithstanding the foregoing or anything else in this Agreement to ~~retain~~the contrary: (i) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing; (ii) except as set forth in Section 5.5(d) of the Seller Disclosure Letter, Seller shall not be required to, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller or any of its Affiliates (other than the ~~businesses, product lines or assets of the Transferred Entities, Purchaser,~~ Companies) or any of their respective ~~Subsidiaries. No actions~~ businesses (other than the Business) (a “Seller Burdensome Condition”); and (iii) neither Purchaser nor Parent shall, including in connection with obtaining the Required Regulatory Approvals, (A) be required to ~~be taken pursuant~~ consent to ~~this Section 6.3(e) shall be considered for purposes~~ the imposition of ~~determining whether a Business Material Adverse Effect has occurred~~ any terms conditions or ~~may occur. (f) Whether~~ limitations on or ~~not the Sale is consummated~~with respect to Parent, Purchaser ~~shall~~ or any of their Affiliates (other than, from and after the Closing, the Companies) or any of their respective businesses (other than, from and after the Closing, the Business) or (B) be ~~responsible for all filing fees~~ required to ~~obtain~~ propose, negotiate, commit to or effect, by consent decree, hold separate orders, or otherwise regarding, the sale, divestiture, license or disposition, in whole or in part of, or suffer any ~~consent~~restriction on the operation of the assets, ~~clearance~~properties or businesses of Parent or its Affiliates (other than, ~~expiration or termination of~~ from and after the Closing, the Business) (the foregoing clause (iii), a ~~waiting period, authorization, Order or approval pursuant to this Section 6.3~~“Purchaser Burdensome Condition”).

Appears in 1 contract

Sources: Equity Interest Purchase Agreement (Gulf Power Co)

Required Actions. (a) ~~Purchaser and Parent~~ Each of the parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things ~~necessary, proper or advisable under any applicable Laws~~ reasonably appropriate to consummate and make ~~effective in an expeditious manner~~ effective, as soon as reasonably possible, the ~~Sale~~ Transactions. (b) In connection with Section 6.03(a), the Company and the ~~other transactions~~ 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 ~~(i)~~ filing a Notification and Report form under the ~~preparation and filing of all forms~~HSR Act, ~~registrations and notices required to be filed to consummate~~ as promptly as practicable with 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~~ Governmental Entities from whom Consents 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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) nonactions are required to be obtained ~~or made by Purchaser or Parent or any of their respective Subsidiaries~~ in connection with the ~~Sale and~~ consummation of the ~~other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale~~ Merger and the other transactions contemplated by this Agreement ~~and~~ in order to ~~fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to take,~~ obtain all such required Consents 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 use reasonable best efforts 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 or approval of, or any exemption by, any nonactions from such Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably necessary information with respect to (andEntities, in ~~the~~ each 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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~~ Merger, so as to enable the ~~other transactions contemplated by this Agreement, then such party will make, or cause~~ Closing to ~~be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand~~occur as soon as reasonably possible, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~five~~ the End Date; provided, however, that neither Parent nor the Company shall be required pursuant to this Section 6.03(d) to commit to any undertaking, divestiture, license or hold separate or 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 (5i) ~~Business Days after~~ a prohibition or limitation on the ~~date~~ 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, properties or assets of the Company, Parent or any of their respective Subsidiaries, (ii) the Company, Parent or 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 right of ownership of, any shares of the 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 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, ~~notifications under~~ each of Parent and the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser Company shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser shall use its their reasonable best efforts to ~~initiate and/or~~ participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale~~ Transactions or ~~the other transactions contemplated by this Agreement and/or~~ (ii) take such action as necessary to overturn any regulatory ~~Action~~ action by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, including by defending any ~~such Action~~ suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any ~~Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement~~ Legal Restraint resulting from any ~~such Action~~suit, action or other legal proceeding that would cause any condition set forth in Section 7.01(c) or (d) not to be satisfied. (e) ~~Notwithstanding any other provision~~ In connection with and without limiting the generality of ~~this Agreement~~the foregoing, ~~Purchaser shall take all actions reasonably necessary~~ each of Parent and the Company shall: (i) make or cause to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur~~ be made as promptly as reasonably practicable (and in any event no later than 15 Business Days following the ~~Outside Date~~date of this Agreement), in consultation and cooperation with the other, all filings required under the HSR Act relating to the Merger; (ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(d); (iii) give the other reasonable prior notice of any such registration, declaration, submission, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 6.03(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; (iiv) ~~agreeing to~~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, ~~committing~~ 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 ~~and effecting~~consummate any of the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and (v) unless prohibited by ~~consent decree~~applicable Law or by the applicable Governmental Entity, ~~hold separate Order~~(A) to the extent reasonably practicable, not participate in or attend any meeting, or ~~otherwise~~engage in any conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(d) and in this Section 6.03(e)) without the other, (B) to the ~~sale~~extent reasonably practicable, ~~divestiture or disposition~~ give the other reasonable prior notice of any ~~businesses~~such meeting or conversation, ~~product lines~~ (C) in the event one party is prohibited by applicable Law or ~~assets~~ 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 ~~Transferred Entities~~other in connection with the filing of such materials, ~~Purchaser~~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 ~~Subsidiaries~~Representatives on the one hand, and ~~(ii) otherwise taking~~ any Governmental Entity or ~~committing to take actions that after~~ members of any Governmental Entity’s staff, on the ~~Closing would limit Purchaser’s~~other hand, ~~the Transferred Entities’ or their respective Subsidiaries’ freedom of action~~ with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this ~~Section 6.3(e) shall be considered for purposes~~ Agreement and the Merger, subject to redaction of ~~determining whether a Business Material Adverse Effect has occurred~~ competitively sensitive information, valuation material or ~~may occur~~information subject to attorney client privilege. (f) ~~Whether or not~~ Notwithstanding anything else contained herein but subject to the ~~Sale is consummated~~proviso of the first sentence of Section 6.03(d), ~~Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination~~ the provisions of ~~a waiting period, authorization, Order or approval pursuant to~~ this Section ~~6.3~~6.03 shall not be construed to require the Company, Parent or their respective Subsidiaries to offer, take, commit to or accept any action, restrictions or limitations of or on the Company, Parent or their respective Subsidiaries, or to permit such actions, restrictions or limitations without the prior written consent of the other party, 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 in 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) ~~Purchaser and Parent~~ Each of the parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things ~~necessary, proper~~ necessary or advisable ~~under any applicable Laws~~ to cause the conditions to closing of the Transactions to be satisfied and consummate and make ~~effective~~ effective, in ~~an expeditious manner~~ each case, as soon as reasonably possible (and in any event no later than the ~~Sale~~ End Date), the Transactions. (b) In connection with and without limiting Section 6.03(a), the Company and the ~~other transactions~~ 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 state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Transactions and (y) if any state takeover statute or similar statute or regulation 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 and without limiting Section 6.03(a), ~~including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale~~ Parent and the ~~other~~ 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 ~~by this Agreement~~hereby. (d) In connection with and without limiting Section 6.03(a), ~~(ii) taking all actions necessary to obtain (~~the Company and ~~cooperating~~ Parent shall promptly enter into discussions 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~~ the Governmental Entity (which actions shall include furnishing all information required under any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) Entities from whom Consents are required to be obtained in connection with the consummation of the Transactions in order to obtain all such required Consents from such Governmental Entities, in each case with respect to the Mergers, so as to enable the Closing to occur as soon as reasonably possible, and in any event no later than the End Date. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 6.03(f), the Company and Parent shall use their respective reasonable best efforts to jointly negotiate, commit to and effect, by consent decree, hold separate order, condition or ~~made~~ approval or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation of, or requirements or undertakings with respect to the conduct by ~~Purchaser or~~ the Company, Parent or any of their respective Subsidiaries of, any portion of the business, properties or assets of the Company, Parent or any of their respective Subsidiaries; provided, however, that neither Parent nor the Company shall be required pursuant to this Section 6.03(d) to commit to or effect any action, prohibition, limitation, requirement or undertaking that is not conditioned upon the consummation of the Transactions or that, individually or in ~~connection with~~ the ~~Sale~~ aggregate, would or would reasonably be expected to be materially adverse to the Company and its Subsidiaries or Parent and the ~~other transactions contemplated~~ Parent Subsidiaries, each taken as a whole. If the actions taken by ~~this Agreement,~~ Parent and the Company pursuant to the immediately preceding sentence do not result in the conditions set forth in Sections 7.01(c) and (~~iii~~d) being satisfied, then, during 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~~ term of this Agreement~~. Additionally~~, each of Parent and ~~Purchaser~~ the Company shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser shall use its reasonable best efforts to initiate ~~and/or~~ or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale~~ Transactions or ~~the other transactions contemplated by this Agreement and/or~~ (ii) take such action as necessary to overturn any regulatory ~~Action~~ action by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, including by defending any ~~such Action~~ suit, action or other legal proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any ~~Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement~~ Legal Restraint resulting from any ~~such Action~~suit, action or other legal proceeding that would cause any condition set forth in Section 7.01(c) or (d) not to be satisfied. (e) ~~Notwithstanding any other provision~~ In connection with and without limiting the generality of ~~this Agreement~~the foregoing, ~~Purchaser shall take all actions reasonably necessary~~ each of Parent and the Company shall: (i) make or cause to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur~~ be made as promptly as reasonably practicable (and in any event no later than 15 Business Days following the ~~Outside Date~~date of this Agreement), in consultation and cooperation with the other, all filings required under the HSR Act relating to the Merger; (ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(d); (iii) give the other reasonable prior notice of any such registration, declaration, submission, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Transactions (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; (iiv) ~~agreeing to~~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, ~~committing~~ 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, except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; (v) prepare and ~~effecting~~submit, in a form acceptable to the cognizant security agency, to the Defense Security Service (“DSS”) of the United States Department of Defense a notification under NISPOM and any other applicable national or industrial security regulations, and any other applicable customer, national or industrial security regulations or customer program security requirements; provided, that each of Parent and the Company shall have approval rights over the content of all related communications, filings and notifications and shall be entitled to participate in all related discussions, where acceptable to the cognizant security agency; and (vi) unless prohibited by ~~consent decree~~applicable Law or by the applicable Governmental Entity, ~~hold separate Order~~(A) to the extent reasonably practicable, not participate in or attend any meeting, or ~~otherwise~~engage in any conversation with any Governmental Entity in respect of the Transactions (including with respect to any of the actions referred to in Section 6.03(d) and in this Section 6.03(e)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Mergers, articulating any regulatory or competitive argument, or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Mergers, 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 second sentence of Section 6.03(d), the ~~sale~~provisions of this Section 6.03 shall not be construed to require the Company, ~~divestiture~~ Parent or ~~disposition~~ their respective Subsidiaries to offer, take, commit to or accept any action, restrictions or limitations of ~~any businesses~~or on the Company, ~~product lines~~ Parent or ~~assets~~ their respective Subsidiaries, or to permit such actions, restrictions or limitations without the prior written consent of Parent (in the ~~Transferred Entities~~case of such offerings, ~~Purchaser~~taking, commitments, acceptances or permissions by the Company) or the Company (in the case of such offerings, takings, commitments, acceptances, or permissions by Parent), as applicable, if such actions, restrictions or limitations, individually or in the aggregate, would or would reasonably be expected to be materially adverse to the Company, Parent and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken ~~pursuant to this Section 6.3(e) shall be considered for purposes of determining whether~~ as a ~~Business Material Adverse Effect has occurred or may occur~~whole. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Engility Holdings, Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall ~~use reasonable best efforts to~~ 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 consummate and make effective in an the most expeditious manner possible the Sale on the terms and subject to the ~~other transactions contemplated by~~ conditions set forth in this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~Sale, (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 ~~any Competition Laws~~ the HSR Act or any other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Competition Laws) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Sale, 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 ~~Parent~~ Seller and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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. Purchaser and Seller shall coordinate with respect to the overall strategy relating to Competition Laws, including with respect to any filings, notifications, submissions and communications with or to any Governmental Entity; provided, however, that Purchaser shall make the final determination as to the appropriate course of action. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other party (or ~~their~~ its 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~~ Agreement and the ~~other transactions contemplated by this Agreement~~Sale. Subject to the Confidentiality Agreement and Section ~~6.2~~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~~the case of written communication, furnish the other party with copies of (or, in the case of oral communications, advise the other party orally of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Sale, and ~~except as provided in Section 6.20,~~ 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 (to the extent reasonably practicable) oral communication or submission with or to any such Governmental ~~Entity or other such Person~~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~~Sale, 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, on one hand, and Parent, on the other hand,~~ Neither 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 proceeding or Action by ~~a private party~~ such Person relating to the HSR Act or any other Competition Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or or, to the extent reasonably practicable, 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, 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 and any materials provided by Purchaser to ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ Seller shall ~~file or cause to be filed~~file, as promptly as practicable, but in any event no later than ~~five~~ fifteen (515) Business Days after the date of this ~~Agreement~~Agreement (unless Purchaser and Seller mutually agree to a later filing date), notifications under the HSR Act, and Purchaser and ~~Parent~~ Seller shall ~~file or cause to be filed~~file, as ~~soon~~ promptly as ~~reasonably~~ practicable, ~~but in~~ any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth (or~~under applicable Competition Laws. 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 Competition Laws, ~~where~~ the parties shall use their respective best efforts to certify compliance with such requests, as applicable, ~~drafts thereof)~~ at the earliest practicable and advisable date and produce documents on ~~Section 6.3(c)~~ a rolling basis, and counsel for both parties will closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) Purchaser and Seller shall use ~~its~~ their respective best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings~~Sale under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, or any other United States federal or state or foreign or supranational Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade (collectively, “Competition Laws”). In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale ~~or the other transactions contemplated by this Agreement~~ as violative of any ~~applicable~~ Competition Laws, Purchaser and Seller shall jointly (to the extent practicable) use ~~its reasonable~~ their best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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~~Sale, 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 take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred ~~Entities’~~ Entities or their respective ~~Subsidiaries~~Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Affiliates. In that regard Purchaser shall and, if requested by Purchaser, Seller shall (but, subject to Purchaser’s obligations under this Agreement, including this Section 5.3, if not so requested by Purchaser shall not), agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser~~’s Subsidiaries~~’s, Seller’s, or their respective Affiliates’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective ~~Subsidiaries~~Affiliates. No All such efforts by Purchaser shall be unconditional, and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(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, neither Purchaser nor Seller shall be obligated to take or agree or commit to take any action described in clause (i) or (ii) of this Section 5.3(e) (A) that is not conditioned on the Closing or (B) that relates to any business, operations, assets, liabilities, product lines or Subsidiary not to be transferred to Purchaser pursuant to and in accordance with the terms and conditions of this Agreement. (f) 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 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 any third party or 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 ~~6.3~~5.3, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

Sources: Stock Purchase Agreement (Abbott Laboratories)

Required Actions. (a) Purchaser Parent and ~~Parent~~ the Sellers shall, and shall cause their respective Affiliates to, use their reasonable best efforts to 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 consummate and make effective ~~in an expeditious manner~~ the Sale and ~~the~~ other transactions contemplated by this ~~Agreement~~Agreement as promptly as reasonably practicable, including (i) the preparation and filing of all forms, registrations and notices required or advisable 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, waiver, permit authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under ~~any Competition Laws~~ the HSR Act or any other applicable ~~Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Laws) required or advisable to be obtained or made by Purchaser Parent or ~~Parent~~ the Sellers or any of their respective ~~Subsidiaries~~ 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~~ hereunder and to fully carry out the purposes of this Agreement. Additionally, each of ~~Parent~~ the Sellers and Purchaser Parent shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable best efforts to 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 use~~ Agreement, in each case subject to the other provisions of this Section 5.03. Subject to Section 5.07, the “reasonable best ~~efforts not to take any action after~~ efforts” of the ~~date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result~~ Sellers hereunder shall in ~~not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of,~~ no event require Parent or any ~~exemption by,~~ of its Subsidiaries or Affiliates to provide any ~~Governmental Entity necessary~~ financing to ~~be obtained at~~ Purchaser Parent or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively its Affiliates in connection with ~~obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of,~~ the Sale or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Securities Purchase Agreement (Alliance Data Systems Corp)

Required Actions. (a) Purchaser and ~~Parent~~ the Sellers shall use reasonable best efforts to 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 consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) ~~the preparation~~ using reasonable best efforts to prepare and ~~filing of~~ file all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) ~~taking~~ using reasonable best efforts to take 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 ~~any Competition Laws~~ the HSR Act or any other applicable Competition Laws ~~relating~~ or with respect to ~~the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~any other Required Approval) required to be obtained or made by Purchaser or ~~Parent~~ the Sellers or any of their respective Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement, and (iii) ~~the execution~~ using reasonable best efforts to execute and ~~delivery of~~ deliver 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 ~~Parent~~ the Sellers and Purchaser shall use reasonable best efforts to 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 ~~use reasonable best efforts~~ 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Parent~~ the Sellers shall each keep the other ~~reasonably~~ 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ 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 ~~6.2~~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 ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person~~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 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, on one hand, and Parent, on the other hand,~~ Neither Sellers nor 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 proceeding or Action by a private party relating to the HSR Act or any other applicable Competition Laws or 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~~ parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ parties the opportunity to attend and participate thereat, unless such Governmental Entity objects, provided, however, that if a Governmental Entity objects to such other party’s participation in the meeting or conversation, the party or parties that do participate in the meeting or conversation shall inform the other parties or parties that such a meeting or conversation took place and shall provide a reasonably detailed summary of such meeting or conversation. 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. Purchaser and ~~Parent~~ the Sellers may, as each deems ~~in good faith to be~~ 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 and any materials provided by Purchaser to ~~Parent~~ the Sellers or by ~~Parent~~ the Sellers to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~the Sellers, 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ the Sellers shall file or cause to be filed, (i) the required notifications under the HSR Act and with respect to the Required Approval as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, ~~notifications under the HSR Act,~~ and ~~Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in~~ (ii) any ~~event no later than eight (8) Business Days after the date of this Agreement, those~~ other filings and/or notifications ~~set forth (or~~required under any applicable Competition Laws, ~~where~~ whether in draft or final form, as promptly as practicable. 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, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, ~~drafts thereof)~~ as promptly as possible and produce documents, responses to interrogatories, or other information on ~~Section 6.3(c)~~ a rolling basis, and counsel for both parties will closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) Purchaser and the Sellers shall use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under the HSR Act and any other applicable Competition Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of the HSR Act or any other applicable Competition Laws, Purchaser and the Sellers shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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 take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under the HSR Act or any other applicable Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred ~~Entities’~~ Entities or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall and, if requested by Purchaser, the Sellers shall (but, subject to Purchaser’s obligations under this Agreement, including this Section 5.3, if not so requested by Purchaser, the Sellers shall not), agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s or the Sellers’ respective Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No All such efforts by Purchaser shall be unconditional, and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(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, neither the Purchasers nor the Sellers shall be obligated to take or agree or commit to take any action (A) that is not conditioned on the Closing or (B) that relates to the Retained Businesses. (f) 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 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 any third party or 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 ~~6.3~~5.3, other than the fees of and payments to the Sellers’ respective legal and professional advisors.

Appears in 1 contract

Sources: Securities Purchase Agreement (Hologic Inc)

Required Actions. (a) Subject to the terms and conditions of this Agreement, Purchaser and Parent shall use reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or ~~any other~~ applicable Laws ~~relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~governing foreign direct investment) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale and the other transactions contemplated by this Agreement; provided that the Purchaser’s obligation to submit filings and/or notifications under applicable Competition Laws shall be limited to the Required Regulatory Approvals, 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, subject to the terms and conditions of this Agreement, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts to 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and, subject to the terms and conditions of this Agreement, 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 Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Stock Purchase Agreement (Ecovyst Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ the Sellers shall use their reasonable best efforts to 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 consummate and make effective ~~in an expeditious manner~~ the Sale ~~and the other transactions contemplated by this Agreement~~as promptly as reasonably practicable, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement~~Sale, (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 ~~any Competition Laws~~ the HSR Act or any other ~~applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Laws) required to be obtained or made by Purchaser or ~~Parent~~ the Sellers or any of their respective Subsidiaries in connection with the ~~Sale and the other transactions contemplated by this Agreement~~Sale, 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 ~~Parent~~ the Sellers and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this ~~Agreement~~ Agreement, in each case subject to the other provisions of this Section 5.03, and shall ~~use reasonable best efforts not~~ not, without the prior written consent of the other party, except (i) as expressly required by this Agreement, or (ii) as required by Law: (A) (1) acquire or agree to ~~take~~ acquire, by merger, consolidation, stock or asset purchase or otherwise, any ~~action after the date of this Agreement that~~ business or corporation, partnership or other business organization or division thereof, (2) dissolve, merge or consolidate with any other Person, or (3) enter into a joint venture or other material, non-ordinary course business transaction with any other Person, in each case if such transaction would reasonably be expected to ~~materially delay the obtaining of~~prevent, delay, or ~~result~~ impede in ~~not obtaining~~any material respect the consummation of the transactions contemplated by this Agreement; or (B) take any action with the purpose, intent or knowledge (i.e., knowledge that the intended act would reasonably be expected to have the applicable result) of causing any ~~consent~~of the conditions precedent to the transactions contemplated by this Agreement to fail to be satisfied or with the purpose, ~~clearance~~intent or knowledge (i.e., ~~expiration~~ knowledge that the intended act would reasonably be expected to have the applicable result) of preventing, delaying or ~~termination~~ impeding the consummation of ~~a waiting period, authorization, Order or approval of,~~ the Sale or any ~~exemption by,~~ other transaction contemplated by this Agreement; or (C) agree or commit to do or take any ~~Governmental Entity necessary to be obtained at~~ of the actions described in Section 5.03(a)(A) or ~~prior to the Closing~~Section 5.03(a)(B). (b) Prior to the Closing, Purchaser, Parent and the Sellers shall, to the extent not prohibited by applicable Law, ~~Purchaser and Parent shall~~ each keep the ~~other reasonably~~ others 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.02, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall as promptly as reasonably practicable consult with the other ~~party~~ parties to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ parties (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~~ Agreement and the ~~other transactions contemplated by this Agreement~~Sale. Subject to the Confidentiality Agreement, the Joint Defense Agreement and Section ~~6.2~~5.02, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other ~~party~~ parties to this Agreement, ~~and~~ and, if in writing, furnish the other ~~party~~ parties with copies of (or, in the case of oral communications, advise the other ~~party~~ parties orally of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale or the other transactions contemplated by this Agreement~~Sale, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ parties to review and discuss in advance, and consider in good faith the views of the other ~~party~~ parties in connection with, any proposed written or oral communication or submission with ~~or to~~ any such Governmental ~~Entity or other such Person~~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~~Sale, then such party will make, or cause to be made, as promptly as reasonably practicable and after consultation with the other ~~party~~ parties to this Agreement, an appropriate response ~~in compliance with~~ to such request. ~~Purchaser, on one hand,~~ Purchaser and ~~Parent, on~~ the ~~other hand,~~ Sellers 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 Competition Laws in connection with this Agreement or the Sale,~~ Sale (or make oral submissions at meetings or in telephone or other conversations) or, ~~unless~~ in connection with any proceeding by a private party regarding the transactions contemplated hereby relating to the HSR Act or any other Competition Laws, with any other Person, unless, to the extent reasonably practicable, it consults with the other ~~party~~ party(ies) in advance and, to the extent not prohibited by such Governmental ~~Entity~~Entity or applicable Law, gives the other ~~party~~ party(ies) the opportunity to attend and participate thereat. ~~Purchaser and Parent may, as each deems in good faith to be advisable and necessary, reasonably designate any competitively sensitive material provided~~ Subject to the Confidentiality Agreement, Joint Defense Agreement and Section 5.02 and to the extent not prohibited by applicable Law, each party shall furnish the other ~~party under~~ parties with copies of all correspondence, filings, submissions and communications between it and any such Governmental Entity with respect to this Agreement ~~as “outside counsel only.” Such designated materials~~ and ~~any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3~~the Sale, and furnish the other parties with such necessary information ~~contained therein, shall be given only to the outside legal 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 Parent, reasonable assistance as the ~~case~~ other parties may ~~be)~~ reasonably request in connection with its preparation of necessary filings or ~~its legal counsel; it being understood~~ submissions of information to any such Governmental Entity. The parties agree that materials provided pursuant to this ~~Agreement~~ Section 5.03(b) may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns; provided that the obligation to provide copies does not include documentary responses to a request for additional information under the HSR Act. In furtherance and not in limitation of the foregoing, the parties agree to consult and cooperate with one another in connection with any submission by or on behalf of any party hereto in connection with any Competition Laws; provided that Purchaser, after prior, good faith consultation with Parent and after considering in good faith Parent’s views and comments, shall have the principal responsibility for devising and implementing the strategy for satisfying the Competition Law conditions set forth in Section 8.01(a); provided, however, that the consent of each party shall be required prior to the taking of any action (including the failure to take any such action), in connection with satisfying the Competition Law conditions set forth in Section 8.01(a) if such action (or failure to act) would be reasonably likely to delay or impede in any material respect the likelihood of satisfying any such conditions. (c) Purchaser and Parent shall ~~file or cause to be filed~~file, as promptly as practicable, but in any event no later than ~~five~~ thirty (530) ~~Business Days~~ days after the date of this Agreement, their respective notifications under the HSR ~~Act~~Act and any other Competition Laws where the applicants do not customarily submit a draft filing and/or notification to the relevant Governmental Entity, and Purchaser and ~~Parent~~ the Sellers shall ~~file or cause to be filed~~file, as ~~soon~~ promptly as ~~reasonably~~ practicable, any other filings and/or notifications under applicable Competition Laws, but in any ~~event~~ event, any initial draft notifications of any other filings shall be submitted no later than ~~eight~~ thirty (~~8) Business Days~~ 30) 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 Competition Laws, ~~those other filings and/or notifications set forth (or~~the parties shall use their respective reasonable best efforts to certify substantial compliance with such requests, ~~where~~ as applicable, ~~drafts thereof~~as promptly as practicable within three (3) ~~on Section 6.3(c)~~ months after receipt thereof (provided, that the parties shall consult with each other in good faith with respect to the timing of any such certification, and consider in good faith, acting reasonably, the views of the ~~Purchaser Disclosure Schedule~~ other party as to such timing, including in the context of the optimal strategy in connection with obtaining all necessary approvals so as to permit the Closing to occur in accordance with the terms hereof (~~collectively~~including such good faith consultation with respect to, and consideration of, acceleration of such certification within such three (3) month period)) and produce documents on a rolling basis, and counsel for both parties will closely cooperate during the ~~“Antitrust and Foreign Investment Filings”)~~entirety of any such investigatory or review process. (d) Purchaser and the Sellers shall use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust and Foreign Investment Filings~~Sale under any Regulatory Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale ~~or the other transactions contemplated by this Agreement~~ as violative of any ~~applicable Competition~~ Regulatory Laws, Purchaser and the Sellers shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against ~~any~~ such 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~~ such Action by any Governmental Entity to block consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Sale, 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; provided that prior to taking any action described in the foregoing clauses (i) and (ii), Parent and Purchaser shall first discuss in good faith whether taking such action is reasonably likely to result in a successful outcome (it being understood that Purchaser and the Sellers shall take the applicable action if Parent so requests following such good faith discussion). (e) Notwithstanding ~~any other provision of~~ anything to the contrary in this Agreement, ~~Purchaser shall take all actions reasonably necessary~~ but subject to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable~~ the ~~Closing to occur as promptly as practicable~~ remainder of this Section 5.03(e) (~~and in any event no later than~~ including the ~~Outside Date~~limitations set forth below), ~~including~~ the parties hereto understand and agree that Purchaser’s reasonable best efforts shall include (i) ~~agreeing to~~entering into any settlement, ~~committing to and effecting~~undertaking, by consent decree, ~~hold~~ stipulation or agreement with any Governmental Entity in connection with the transactions contemplated hereby and (ii) selling, divesting or otherwise holding separate ~~Order~~(including by establishing a trust or otherwise) or disposing of (including by way of an exclusive or non-exclusive license), or taking, causing to be taken or refraining from taking any other action, in the case of each of clause (i) and clause (ii), and otherwise agreeing or committing to do any of the foregoing, with respect to any of Purchaser’s or its Affiliates’ businesses, assets or properties or the businesses, assets or properties of the Transferred Entities or the Business, it being understood that Purchaser’s obligations pursuant to the foregoing clauses (i) and (ii) shall be limited to the following actions: (A) selling, divesting or disposing of (including by way of an exclusive or non-exclusive license), or the holding separate (including by establishing a trust or otherwise) of, ~~the sale, divestiture or disposition of any~~ businesses, product lines or assets of (1) MST (but, for the ~~Transferred Entities~~avoidance of doubt, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any no other businesses, product lines or assets of Purchaser and its Subsidiaries, except MST’s and Purchaser’s obligations shall include (x) licensing, or causing the licensing, of intellectual property owned or controlled by Purchaser or its Affiliates used or planned or proposed (but not rejected by Purchaser) to be used on future programs contemplated by Purchaser or its Affiliates as reflected in the Long Range Plans of Purchaser or its Affiliates effective as of the date hereof or at or prior to Closing (“MST Intellectual Property”) (including up to a perpetual, irrevocable, fully-paid, non-exclusive, world-wide license providing for a field of use sufficient to allow the purchaser or licensee to operate the applicable MST businesses, product lines and assets in the manner operated by MST at the time of divestiture, and to pursue and perform on any future programs of a substantially similar nature) and (y) de minimis assets to effectively accomplishing a transaction otherwise required by this clause (A)(1)), and (2) the Transferred ~~Entities~~Entities or Business (clauses (A)(1) and (2) collectively, ~~Purchaser~~an “Asset Disposal”), except that Purchaser shall have no obligation to sell, divest, hold separate or dispose of businesses, product lines or assets to the extent generating revenues in excess of $650 million in the aggregate with respect to the foregoing clauses (A)(1) and (2) for the fiscal year ended December 31, 2014, and ~~their respective Subsidiaries. In~~ except that ~~regard~~ Purchaser shall ~~sell, dispose of, hold separate, or otherwise take or commit~~ not be required to take any such action with respect to the X2 technology or its applications from the Transferred Entities or the Business, without regard to the revenues associated with that ~~limits its~~ technology; (B) accepting behavioral limitations, conduct restrictions or similar commitments that limit freedom of action ~~with~~ or result in the voiding, elimination or release of any rights in respect ~~to, or Purchaser’s Subsidiaries’ ability to retain, any~~ of ~~the~~ businesses, product lines or assets of (1) MST (but, for the avoidance of doubt, no other businesses, product lines or assets of Purchaser and its Subsidiaries, except Purchaser shall agree to behavioral limitations, conduct restrictions or similar commitments with respect to MST Intellectual Property), and (2) the Business or the Transferred ~~Entities~~Entities (excluding in each case, ~~Purchaser~~for the avoidance of doubt, any Asset Disposal, which is the subject of the foregoing clause (A)), except as would, individually or in the aggregate, when aggregated with any ~~of their respective Subsidiaries. No~~ Asset Disposal and any actions required to be taken pursuant to ~~this Section 6.3(e) shall~~ the following clause (C), reasonably be ~~considered~~ expected to have a “material adverse effect” on the Business and the Transferred Entities, taken as a whole, or MST (with “material adverse effect,” for purposes of ~~determining whether~~ this clause (B), being measured in relation to the size of the Business and Transferred Entities, taken as a ~~Business Material Adverse Effect has occurred~~ whole); provided, however, that the exercise by a third party of a pre-existing to the date hereof right to terminate, or ~~may occur. (f) Whether or not~~ the ~~Sale is consummated~~voiding, ~~Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration~~ elimination or termination of exclusivity rights by a ~~waiting period, authorization, Order or approval~~ third party pursuant to a pre-existing to the date hereof right to terminate such rights in, any teaming agreement shall not constitute, or be considered in the calculation of, a material adverse effect for purposes of this ~~Section 6.3.~~section; and (C) accepting behavioral limitations, conduct restrictions or similar commitments that limit freedom of action or result in the voiding, elimination or release of any rights in respect of any business segment of Purchaser (as set forth in Purchaser’s Form 10-K for the year ended December 31, 2014), other than the MST segment (it being agreed that for these purposes the Business and Transferred Entities will be considered part of the MST segment) (excluding in each case, for the avoidance of doubt, any Asset Disposal, which is the subject of the foregoing clause (A), and any limitations, restrictions or commitments which are the subject of the foregoing clause (B)), except as would, individually or in the aggregate, reasonably be expected to be material to any product category or capability material to such business segment, it being agreed that none of (1) integrating the Business or Transferred Entities into a business segment of Purchaser and its Subsidiaries other than Purchaser’s MST business segment, (2) deploying and instituting firewalls between any of Purchaser’s and its Subsidiaries’ business un

Appears in 1 contract

Sources: Stock Purchase Agreement (Lockheed Martin Corp)

Required Actions. (a) ~~Purchaser~~ During the period between the date hereof and the earlier to occur of (x) Closing and (y) termination of this Agreement (the “Interim Period”), Purchaser, Seller and Parent shall use reasonable best efforts to 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 consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement,~~ Agreement and (ii) taking ~~all~~ 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 ~~Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule~~Regulatory Laws) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement, and (iii)~~ Agreement or otherwise become applicable to 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 Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) ~~Prior to~~ During the ~~Closing~~Interim Period, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Seller and Parent shall each keep the other ~~reasonably~~ 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~~Regulatory Approvals. In that regard, ~~prior to~~ during the ~~Closing~~Interim Period, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of ~~Parent~~ Seller and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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 6.2, to the 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 ~~writing~~writing and to the extent reasonably practicable (taking into consideration any timing requirements or filing deadlines), furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any material communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 ~~Competition~~ 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 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 Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 consummation of the Sale or the other transactions contemplated by this Agreement, ~~including by defending~~ 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 ~~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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.55

Appears in 1 contract

Sources: Equity and Asset Purchase Agreement (Excelerate Energy, Inc.)

Appears in 1 contract

Sources: Purchase Agreement (Lumen Technologies, Inc.)

Required Actions. (a) Purchaser and Parent shall ~~use reasonable best efforts to~~ 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 consummate and make effective in an the most expeditious manner possible the ~~Sale~~ Transactions and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the ~~Sale~~ Transactions 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 any applicable Competition ~~Laws or~~ Laws) required under any ~~other~~ applicable Laws ~~relating to the filings~~ and/or ~~notifications set forth on Section 6.3(c) of the Disclosure Schedule) required~~ by this Agreement to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the ~~Sale~~ Transactions and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the ~~Sale~~ Transactions and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall ~~use reasonable best efforts to~~ 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 ~~use reasonable best efforts~~ 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing and, in the case of any Deferred Closing Governmental Approval, after the Closing. (b) Prior to the ~~Closing~~Closing (or with respect to any Deferred Closing Governmental Approval, prior to the Deferred Closing Date), to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the ~~Sale~~ Transactions 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. In that regard, prior to the ~~Closing~~Closing (or with respect to any Deferred Closing Governmental Approval, prior to the Deferred Closing Date), subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ Party shall promptly consult with the other ~~party~~ Party to this Agreement to provide any ~~reasonably~~ necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Party (or their counsel) copies of) all filings made by such ~~party~~ Party with any Governmental Entity or any other information supplied by such ~~party~~ Party to, or correspondence with, a Governmental Entity in connection with this Agreement, the ~~Sale~~ Transactions, and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~party~~ Party to this Agreement shall promptly inform the other ~~party~~ Party to this Agreement, and if in writing, furnish the other ~~party~~ Party with copies of (or, in the case of oral communications, advise the other ~~party~~ Party of) any ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the ~~Sale~~ Transactions, or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ permit the other ~~party~~ Party to review and discuss in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed written or oral communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any ~~party~~ Party to this Agreement or any ~~representative~~ Representative of such ~~party~~ Party receives a request for additional information or documentary material from any Governmental Entity with respect to the ~~Sale~~ Transactions, or the other transactions contemplated by this Agreement, then such ~~party~~ Party will make, or cause to be made, promptly and after consultation with the other ~~party~~ Party to this Agreement, ~~an appropriate~~ a complete response in compliance with such request. ~~Purchaser, on one hand, and Parent, on the other hand,~~ No Party shall ~~not~~ participate in any meeting with any Governmental Entity in connection with this ~~Agreement or~~ Agreement, the ~~Sale~~Transactions, or with any other Person in connection with any proceeding or Action by a private ~~party~~ Party relating to any applicable Competition Laws in connection with this ~~Agreement or~~ Agreement, the ~~Sale~~Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other ~~party~~ Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ 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 Transactions, 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 Parent may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ Party under this Agreement as “outside counsel/corporate in-house counsel only.” Such designated ~~materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3~~materials, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house counsel of the recipient involved in the Transactions and the other transactions contemplated by this Agreement and shall not be disclosed by such outside counsel and corporate in-house counsel to employees (other than corporate in-house counsel), officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) 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 ~~confidentiality~~ arrangements and (iii) as necessary to address reasonable privilege concerns. The Parties shall have joint control and authority to direct and implement the regulatory strategy; provided, however, that without limiting Purchaser’s obligations hereunder, Purchaser shall have final authority to direct and implement the regulatory strategy; provided that Purchaser shall consult in good faith the views of Parent in advance of making any decisions with respect to such strategy. (c) Purchaser and Parent shall file ~~or cause to be filed,~~ any filings and/or notifications under applicable Competition Laws as promptly as ~~practicable~~possible. Notwithstanding anything to the contrary in this Agreement, ~~but~~ no Party shall make any filings and/or notifications under applicable Competition Laws in any jurisdiction, other than a Required Jurisdiction or the jurisdiction set forth on Section 5.3(c) of the Parent Disclosure Schedule, unless Purchaser and Parent mutually agree that such filing and/or notification is necessary or advisable (and neither Purchaser nor Parent shall unreasonably refuse to agree). In the event that the Parties receive any request for information or documentary material from any Governmental Entity, including a request for additional information or documentary materials pursuant to any applicable Competition Laws, the Parties shall comply with such requests as promptly as possible (and in any event ~~no later than five~~ within two (52) ~~Business Days~~ months after receipt thereof, unless otherwise agreed to by the ~~date of this Agreement~~Parties) and produce documents, ~~notifications under the HSR Act~~responses to interrogatories, witnesses for deposition, or other information on a rolling basis, and ~~Purchaser and Parent shall file~~ counsel for both Parties will closely cooperate during the entirety of any such investigatory or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)review process. (d) Purchaser ~~shall use its best efforts to~~ and Parent shall, by any means other than termination of this Agreement, promptly resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Transactions, and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any Competition Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the ~~Sale~~ Transactions, or the other transactions contemplated by this Agreement as violative of any applicable Competition Laws, Purchaser and Parent shall ~~use its reasonable best efforts to~~ jointly initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, to (i) initiate, oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale~~ Transactions, 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~~ Transactions, or the other transactions contemplated by this ~~Agreement~~Agreement in each case to the extent necessary so as to enable the Closing to occur as promptly as possible, 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~~ Transactions, or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its Affiliates to, take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under any applicable Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date)) and/or to obtain approvals, if any, in the jurisdiction set forth on Section 5.3(c) of the Parent Disclosure Schedule as promptly as practicable, including (i) ~~agreeing to~~proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred ~~Entities’~~ Entities or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Subsidiaries (collectively, the “Remedies”). In that regard Purchaser shall and, if requested by Purchaser, Parent shall (but, subject to Purchaser’s obligations under this Agreement, including this Section 5.3, if not so requested by Purchaser, Parent shall not), agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s or Parent’s or their respective Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of Purchaser’s Subsidiaries; provided, however, that the obligations of Parent and its Affiliates shall be subject to the limitations set forth in the second and third sentences of Section 5.15(e) (which shall apply mutatis mutandis) and provided, further, that Parent and its Affiliates shall not be required to agree to retain any or all of the Transferred Entities or the Business after the Closing. Purchaser shall reimburse, indemnify and hold harmless Parent and its Affiliates and their respective ~~Subsidiaries~~representatives from and against any out-of-pocket costs and expenses actually incurred by them in connection with any actions taken at Purchaser’s request to facilitate or effectuate any divestiture, disposition or other remedy pursuant to this Section 5.3(e). No All such efforts by Purchaser shall be unconditional, and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, Parent shall not be obligated to take or agree or commit to take any such action (A) that is not conditioned on the Closing or (B) that relates to or impacts the Retained Businesses. (f) 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 whose consent or approval is sought in connection with the transactions contemplated hereby. Whether or not the ~~Sale is~~ Transactions are consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.3 or Section 5.5, other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Transaction Agreement (Ebay Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Parent~~ conditions of this Agreement, each of the parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things ~~necessary, proper or advisable under any applicable Laws~~ reasonably appropriate to consummate and make ~~effective in an expeditious manner~~ effective, as soon as reasonably possible, the ~~Sale~~ Merger and the other transactions contemplated by this Agreement. (b) In connection with and without limiting Section 6.03(a), ~~including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale~~ Valeant and the ~~other transactions~~ Valeant Board and Biovail and the Biovail Board, as the case may be, shall use their respective reasonable best efforts to (x) take all action reasonably appropriate to ensure that no takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any transaction contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to this Agreement or any transaction contemplated by this Agreement, ~~(ii) taking~~ take all ~~actions necessary~~ action reasonably appropriate 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 any Competition Laws or any other applicable Laws relating to ensure that the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement. (c) In connection with and ~~to fully carry out~~ without limiting Section 6.03(a), promptly following the ~~purposes~~ execution and delivery by the parties of this Agreement~~. Additionally~~, ~~each of Parent~~ Valeant and ~~Purchaser~~ Biovail shall use their respective reasonable best efforts to ~~take,~~ enter into discussions with the Governmental Entities from whom Consents 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary nonactions are required to be obtained ~~at or prior to~~ in connection with the ~~Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised~~ consummation of the ~~status of matters relating to the completion of the Sale~~ Merger and the other transactions contemplated by this Agreement in order to obtain all such required Consents or nonactions from such Governmental Entities, in each case with respect to the Merger, so as to enable the Closing to occur as soon as reasonably possible. To the extent necessary in order to accomplish the foregoing and ~~work cooperatively~~ subject to the limitations set forth in ~~connection with obtaining all required consents~~Section 6.03(e), ~~clearances~~Valeant and Biovail shall use their respective reasonable best efforts to jointly propose, ~~expirations~~ negotiate, commit to and effect, by consent decree, hold separate order or ~~terminations of waiting periods~~otherwise, ~~authorizations~~the sale, ~~Orders~~ divestiture or ~~approvals~~ disposition of, or prohibition or limitation on the ownership or operation by Valeant, Biovail or any ~~exemptions by~~of their respective Subsidiaries of, any ~~Governmental Entity.~~ portion of the business, properties or assets of Valeant, Biovail or any of their respective Subsidiaries; provided, however, that neither Biovail nor Valeant shall be required pursuant to this Section 6.03(c) to propose, commit to or effect any action that is not conditioned upon the consummation of the Merger or that would reasonably be expected (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) to have a Combined Company Material Adverse Effect. (d) In ~~that regard~~connection with and without limiting the generality of the foregoing, ~~prior~~ each of Biovail and Valeant shall: (i) make or cause to be made, in consultation and cooperation with the other and as promptly as practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the ~~Closing, subject~~ HSR Act relating to the ~~Confidentiality Agreement~~ Merger, (B) if required, a notification pursuant to Section 114(1) of the Competition Act and an application for an advance ruling certificate pursuant to Section ~~6.2~~102 of the Competition Act relating to the Merger and (C) all other necessary registrations, declarations, notices, applications and filings relating to the Merger with other Governmental Entities under any other antitrust, competition, foreign investment, trade regulation or similar Laws; (ii) use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 6.03(c); (iii) give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent ~~not prohibited by applicable Law~~reasonably practicable, ~~each~~ of ~~Parent and Purchaser shall promptly consult with the other party to provide~~ any ~~reasonably 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~~ communication with any Governmental Entity or regarding the Merger (including with respect to any ~~other information supplied by such party to, or correspondence with, a Governmental Entity~~ of the actions referred to in ~~connection with~~ Section 6.03(c) and in 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~~6.03(d)), 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, permit the other ~~party~~ to review and discuss in advance, and consider in good faith the views of of, and secure the participation of, the other ~~party~~ in connection ~~with~~with any such registration, ~~any proposed written~~ declaration, notice, filing or ~~oral communication or submission with or~~ communication; (iv) respond as promptly as practicable under the circumstances to any ~~such~~ inquiries received from any Governmental Entity or any other ~~such Person. If any party to this Agreement~~ authority enforcing applicable antitrust, competition, foreign investment, trade regulation or ~~any representative of such party receives a request~~ similar Laws for additional information or ~~documentary material from~~ documentation in connection with antitrust, competition, foreign investment, trade regulation or similar matters (including a “second request” under the HSR Act and a “Supplementary Information Request” under the Competition Act), and not extend any waiting period under the HSR Act or Competition Act or enter into any agreement with such Governmental ~~Entity with respect~~ Entities or other authorities not to consummate any of the ~~Sale or the other~~ transactions contemplated by this Agreement, ~~then~~ except with the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed; and (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 6.03(c) and in this Section 6.03(d)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party ~~will make~~reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or ~~cause~~ other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument or responding to ~~be made, promptly~~ requests or objections made by any Governmental Entity and ~~after consultation with~~ (E) furnish the other party ~~to this Agreement~~with copies of all correspondence, ~~an appropriate response in compliance with such request. Purchaser,~~ filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and ~~Parent~~any Governmental Entity or members of any Governmental Entity’s staff, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, as the case may be) or its legal counsel; it being understood that materials provided pursuant respect to this Agreement ~~may be redacted (i) to remove references concerning~~ and the valuation of the Business, (ii) as necessary to comply with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 ActionMerger. (e) Notwithstanding ~~any other provision~~ anything else contained herein, the provisions of this ~~Agreement, Purchaser~~ Section 6.03 shall ~~take all actions reasonably necessary~~ not be construed to ~~avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including~~ (i) ~~agreeing to, committing to and effecting, by consent decree, hold separate Order,~~ require Valeant or ~~otherwise, the sale, divestiture~~ any Valeant Subsidiary or ~~disposition of~~ Biovail or any ~~businesses, product lines~~ Biovail Subsidiary or ~~assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and~~ (ii) ~~otherwise taking~~ permit Valeant or ~~committing to take actions that after~~ any Valeant Subsidiary without the ~~Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom~~ prior written consent of ~~action with respect to~~Biovail, or ~~its~~ permit Biovail or ~~their ability~~ any Biovail Subsidiary without the prior written consent of Valeant, to ~~retain,~~ undertake any ~~businesses, product lines~~ efforts or ~~assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit~~ to take any action ~~that limits its freedom~~ if the taking of such efforts or action ~~with respect to,~~ would or ~~Purchaser’s Subsidiaries’ ability~~ would reasonably be expected to ~~retain,~~ result (after giving effect to any reasonably expected proceeds of ~~the businesses, product lines~~ any divestiture or ~~assets~~ sale of ~~the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e~~assets) ~~shall be considered for purposes of determining whether~~ in a ~~Business~~ Combined Company Material Adverse ~~Effect has occurred or may occur~~Effect. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (BIOVAIL Corp)

Required Actions. ~~(a) Purchaser and~~ Notwithstanding anything to the contrary set forth in this Agreement, Parent shall ~~use reasonable best efforts~~ not be obligated under this Section 5.08 or otherwise with respect to ~~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 consummate and make effective in an expeditious manner~~ the ~~Sale and the other~~ 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 ~~preparation and filing~~ Company or any of ~~all forms~~its Subsidiaries), ~~registrations and notices required~~ or their respective shareholders or investors to ~~be filed~~ make, or commit to ~~consummate the Sale and the~~ make, other ~~transactions~~ than as contemplated by ~~this Agreement~~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) ~~taking all actions necessary to obtain (and cooperating with each other in obtaining)~~ require any ~~consent, clearance, expiration or termination of a waiting period, authorization, Order or approval~~ materially adverse deviation from the key terms of, or ~~any exemption by, any Governmental Entity (which actions shall include furnishing all information required under any Competition Laws or any other applicable Laws relating to~~ materially impair the ~~filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required~~ aggregate economic benefits reasonably expected to be ~~obtained or made~~ derived by ~~Purchaser or~~ Parent ~~or any of their respective Subsidiaries in connection with the Sale~~ and ~~the other transactions contemplated by this Agreement, and (iii)~~ its Affiliates from 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 Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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 Summary Business Plan 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent to Purchaser pursuant to this Section 6.3, Company 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 and in-house counsel to employees (other than in-house counsel), officers Company Insurance Subsidiaries or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) 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 confidentiality arrangements and (iii) ~~as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed~~have a materially adverse effect on the business, ~~as promptly as practicable, but in any event no later than five (5) Business Days after the date~~ results of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date operations of ~~this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c)~~ financial condition of the ~~Purchaser Disclosure Schedule~~ Company and its Subsidiaries, taken as a whole (~~collectively~~any such requirement, individually or together with all other such requirements, a “Burdensome Condition”). Without the prior written consent of Parent, the ~~“Antitrust and Foreign Investment Filings”). (d) Purchaser~~ Company shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable not (and ~~in any event no later than the Outside Date), including (i~~shall cause its Subsidiaries not to) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action ~~that limits its freedom of~~ or agree to the taking or refraining from any action ~~with respect~~ or accept any limitation, action, restriction, condition or requirement that, individually or in the aggregate, would, or would be reasonably expected to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether result in a ~~Business Material Adverse Effect has occurred or may occur~~Burdensome Condition. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Midwest Holding Inc.)

Required Actions. (a) Purchaser and ~~Parent~~ Seller shall, and shall ~~use reasonable best efforts to take~~cause their respective Affiliates to, ~~or cause to be taken,~~ 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 an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ 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 ~~any Competition Laws~~ the HSR Act or any other applicable Competition Laws ~~relating~~ or under the FPA, NYPSL or with respect to any other Required Approval and including the ~~filings and/or notifications~~ actions set forth on Section ~~6.3(c~~5.3(a) of the Seller Disclosure Schedule) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ 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 ~~Parent~~ Seller and Purchaser shall, and shall ~~use reasonable best efforts to~~ cause their respective Affiliates to, 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~~ set forth in Article VIII and ~~shall use reasonable best efforts~~ 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, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ~~Closing~~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. Without limiting the foregoing, with the exception of actions or circumstances under NYPSC Case 21-E-0196 or 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 ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Entity for the Sale and the other transactions contemplated by this Agreement. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Parent and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any ~~reasonably~~ 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 ~~6.2~~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 ~~material~~ communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 ~~such Person~~transactions contemplated by this Agreement. If any party to this Agreement or any ~~representative~~ 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~~ 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, on one hand, and Parent, on the other hand,~~ 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, NYPSL 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 ~~Parent~~ Seller may, as each deems ~~in good faith to be~~ 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 ~~and any materials~~ provided by Purchaser to ~~Parent~~ Seller or by ~~Parent~~ Seller to Purchaser pursuant to this Section ~~6.3~~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 ~~Parent~~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~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be ~~filed,~~ filed (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, ~~notifications~~ (ii) an application under Section 203 of the ~~HSR Act, and Purchaser and Parent shall file or cause to be filed,~~ FPA as ~~soon~~ promptly as ~~reasonably~~ practicable, but in any event no later than ~~eight~~ fifteen (8) 15) Business Days after the date of this Agreement, ~~those other~~ (iii) as promptly as practicable, but in any event no later than thirty (30) days after the date of this Agreement, a petition seeking (A) either (1) a declaratory ruling from the NYPSC disclaiming jurisdiction over the Sale, which will include information concerning the Bifurcation in the proposed transaction’s description, or abstaining from further review of the Sale under NYPSL Section 70 or, in the alternative, (2) an order issued by the NYPSC authorizing the Sale, which will include information concerning the Bifurcation in the proposed transaction’s description, under NYPSL Section 70, (B) an order authorizing the proposed financing under NYPSL Section 69, and (iv) the Required Approval addressing (1) the Sale pursuant to Section 3(a) of that certain Guaranty, dated as of October 19, 2005 (the “NYPSC Guaranty”), by Seller, as guarantor, on behalf of PSEG Power New York, Inc., for the benefit of the New York State Department of Public Service acting as agent for the NYPSC, and (2) the termination of the NYPSC Guaranty upon its replacement, and (iv) except as otherwise provided herein, any filings and/or notifications ~~set forth (or~~required in respect of any other Required Approvals as promptly as practicable 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, ~~where~~ 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, ~~drafts thereof)~~ as promptly as possible and produce documents, responses to interrogatories, or other information on ~~Section 6.3(c)~~ a rolling basis, and counsel for both parties shall closely cooperate during the entirety of ~~the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”)~~any such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale and ~~Foreign Investment Filings~~the other transactions contemplated by this Agreement under any applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable ~~Competition Laws~~Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the 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 NYPSC Case 21-E-0196 or FERC Docket No. 21-74, Purchaser shall, and shall cause its Affiliates to, take all actions ~~reasonably~~ necessary to avoid or eliminate each and every impediment under ~~any Competition Laws~~ applicable Law, so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) ~~agreeing to~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective ~~Subsidiaries~~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~~ assets or ~~assets~~ properties of the Transferred Entities, ~~Purchaser,~~ Purchaser and their respective ~~Subsidiaries~~Affiliates. ~~In that regard~~ All such efforts by Purchaser shall ~~sell~~be unconditional, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No and no actions ~~required to be~~ taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding the 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), be required to (and nothing in this Section 5.3 shall be interpreted as requiring Purchaser or any of its Affiliates to) (x) take any action that is not conditioned upon the Closing or (y) consent to any divestiture, hold separate order, limitation on conduct or other remedial action impacting any business or Person other than the Transferred Entities. 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) that relates to the Retained Businesses, and in no event shall Seller or any of 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 assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or 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 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 ~~6.3~~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 each Transferred Entity and/or Facility, as applicable, that has caused such Substantial Detriment (even if no Order with respect thereto has been issued) (“Excluded Facilities”), (B) reduce the Base Purchase Price as provi

Appears in 1 contract

Sources: Equity Purchase Agreement (Pseg Power LLC)

Required Actions. (a) ~~Purchaser~~ Purchaser, Seller and Parent shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and use their respective reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including using their respective reasonable best efforts in (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) the taking of 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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or ~~Parent~~ Seller or any of their respective ~~Subsidiaries~~ Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement,~~ Agreement or otherwise become applicable to the transactions contemplated by this Agreement (“Regulatory Approvals”) 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 Seller, Parent and Purchaser shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and use their respective reasonable best efforts to 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~~ Agreement. Neither party shall ~~use reasonable best efforts not~~ withdraw any filing under any Regulatory Laws or commit to agree with any Governmental Entity to take any action ~~after~~ or non-action that may have the ~~date~~ effect of ~~this Agreement~~ delaying the Closing without the written consent of the other party, provided, that ~~would reasonably be expected~~ Purchaser may “pull and refile” its filing under the HSR Act one time pursuant 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 the Closing16 C.F.R. § 803.12. (b) Prior to the Closing, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Parent and ~~Parent~~ Seller shall each keep the other ~~reasonably~~ 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~~Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of ~~Parent~~ Seller and Purchaser shall promptly consult with the other party to provide any ~~reasonably~~ 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 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~~ substantive communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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~~ communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any ~~representative~~ 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~~ to such request. ~~Purchaser~~Purchaser or its Representatives, on one hand, and ~~Parent~~Seller, Parent or their 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 ~~Competition~~ 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 withhold or redact materials pursuant to reasonable privilege or confidentiality concerns. The parties shall jointly determine the strategy to be employed in seeking to remove impediments to the Closing under Regulatory Laws, provided, that in the event of a disagreement between the parties, Purchaser shall make the final determination after considering Parent ~~may, as each deems~~ and Seller’s views in good ~~faith~~ faith. Parent and Seller shall not propose, negotiate, commit to ~~be advisable and necessary~~or effect any remedial action, ~~reasonably designate any competitively sensitive material provided~~ or otherwise agree with a Governmental Entity with respect to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel timing 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~~ consummation of the ~~recipient unless express permission is obtained in advance from~~ transactions contemplated hereby without the ~~source~~ prior written consent of the materials (Purchaser or Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concernsPurchaser. (c) Purchaser and ~~Parent~~ Seller shall file or cause to be filed, as promptly as practicable, ~~but~~ all mandatory filings and notifications under Regulatory Laws, (and in any event no later than twenty-five (525) Business Days after the date of this ~~Agreement, notifications~~ Agreement with respect to the filing under the HSR ~~Act~~Act and no later than twenty (20) Business Days after the date of this Agreement with respect to filings and notifications under other applicable Regulatory Laws), and Purchaser shall be responsible for all filing fees under the HSR Act and any other Regulatory Laws. (d) The Business produces, designs, tests, manufactures, fabricates, or develops (a) one or more “critical technologies” as such term is defined in 31 C.F.R. § 800.215 that are eligible for export, reexport, transfer (in-country) or retransfer to a non-government end user located or headquartered in Ireland pursuant to 31 C.F.R. § 800.401(e)(6)(ii) and the license exception described at 15 C.F.R. § 740.17(b) and (b) one or more “critical technologies” as such term is defined in 31 C.F.R. § 800.215 that will become eligible for export, reexport, transfer (in-country) or retransfer to a non-government end user located or headquartered in Ireland pursuant to 31 C.F.R. § 800.401(e)(6)(ii) and the license exception described at 15 C.F.R. § 740.17(b) immediately upon the submission by the Parent ~~shall file or cause~~ of a classification request with respect to ~~be filed, as soon~~ such critical technology to the Bureau of Industry and Security (“BIS”) in accordance with 15 C.F.R. § 740.17(d) (the “Business Critical Technology”). As promptly as reasonably practicable, but in any event ~~no later than eight (8) Business Days after~~ before the ~~date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively~~Closing, the ~~“Antitrust and Foreign Investment Filings”). (d~~Seller Group shall submit a classification request to BIS in accordance with 15 C.F.R. § 740.17(d) ~~Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity~~ with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 ActionBusiness Critical Technology. (e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Securities Purchase Agreement (Ziff Davis, Inc.)

Required Actions. (a) Purchaser and Parent 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 necessary, proper or advisable under any applicable Laws to consummate and make effective as promptly as practicable (and in ~~an expeditious manner~~ any event no later than the Outside Date) the Sale and the other ~~transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other ~~transactions contemplated by this Agreement~~Transactions, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective ~~Subsidiaries~~ Affiliates in connection with the Sale and the other ~~transactions contemplated by this Agreement~~Transactions, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other ~~transactions contemplated by this Agreement~~ Transactions and to fully carry out the purposes of this Agreement. ~~Additionally~~In furtherance of the foregoing, ~~each~~ Purchaser and Parent shall (i) 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 supply or cause to be supplied, as promptly as reasonably practicable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as promptly as practicable, and (ii) make, or cause to be made, all other necessary filings under any applicable Competition Law as promptly as practicable, and to supply, as promptly as reasonably practicable, any additional information and documentary materials that may be requested under any Competition Laws. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall (i) cooperate in all respects and consult with the other party to this Agreement in connection with any filing or submission with a Governmental Entity in connection with this Agreement, the Sale and the other Transactions and in connection with any investigation or other inquiry by or before a Governmental Entity or any other Person relating to the Sale and the other Transactions, (ii) promptly inform the other party to this Agreement (and if in writing, furnish the other party with copies of) of any material communication from any Governmental Entity or other such Person regarding the Sale or the other Transactions, and (iii) 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 filing, material written or oral communication or submission with or to any such Governmental Entity or other such Person. To the extent not prohibited by such Governmental Entity or other Person, neither party shall participate in any meeting (whether in-person, by telephone or otherwise) with any Governmental Entity or other Person in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party or Governmental Entity relating to any Competition Laws in connection with this Agreement or the Sale, unless it gives the other party a reasonable opportunity to attend and participate thereat. Notwithstanding the foregoing, either party may, as it deems advisable and necessary, reasonably (A) redact materials provided pursuant to the foregoing clauses (i)-(iii) to remove references concerning the valuation of the Versace Business, as necessary to comply with contractual arrangements and as necessary to address reasonable privilege concerns and (B) designate any sensitive material provided to the other party under this Agreement as “outside counsel only,” which such designated materials 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 written permission is obtained in advance from the party providing the materials. Anything in this Agreement to the contrary notwithstanding, Purchaser, acting reasonably and in a manner consistent with obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods promptly following the date hereof, shall have sole control over the (i) strategy for obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods so as to enable the Closing to occur as soon as practicably possible, (ii) strategy to respond to any request from, inquiry by, or investigation by (including the timing, nature and substance of all such responses) any Governmental Entity with respect to the Sale or any other Transactions and (iii) strategy for the defense and settlement of any Action brought by or before any Governmental Entity that has authority to enforce the applicable Competition Laws; provided that the foregoing shall not relieve Purchaser of its obligations under this Section 5.3 and Purchaser shall ~~use reasonable best efforts~~ consult with Parent and consider its views in good faith. No party shall extend any waiting period under any Competition Law (including by withdrawing and refiling its Notification and Report Form under the HSR Act) or enter into any commitment to or agreement with any Governmental Entity to delay, or otherwise not to consummate as promptly as practicable, the Sale or the other Transactions except with the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed). (c) Notwithstanding any other provision of this Agreement, Purchaser shall (and shall cause its Affiliates to) take, or cause to be taken, all ~~actions,~~ actions and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the Sale and the other Transactions, in each case promptly following the date hereof, including taking all such further action as may be necessary to resolve such objections any Governmental Entity may assert under any ~~applicable~~ Competition Laws with respect to ~~fulfill all conditions precedent~~ the Sale and the other Transactions, and to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition, transfer, license or hold separate of any businesses, divisions, products or product lines, assets or operations of the Transferred Companies, Purchaser, and their respective Affiliates (in the case of the Transferred Companies, Affiliates following the Closing), (ii) terminating, transferring or creating relationships, contractual rights or other obligations of the Transferred Companies, Purchaser, and their respective Affiliates (in the case of the Transferred Companies, Affiliates following the Closing), and (iii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Companies’ or their respective Affiliates’ (in the case of the Transferred Companies, Affiliates following the Closing) freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Companies, Purchaser, and their respective Affiliates (in the case of the Transferred Companies, Affiliates following the Closing) (each such action in the foregoing clauses (i), (ii), and (iii) a “Regulatory Action”); provided, notwithstanding the foregoing, that nothing in this Agreement shall require Purchaser to propose, agree to take, or take any Regulatory Action if such actions would have or would reasonably be expected to have, individually or in the aggregate, a material adverse effect as measured against the value of the Transferred Companies, taken as a whole, after giving effect to the consummation of the Sale and the other Transactions. Notwithstanding anything herein to the contrary, neither Purchaser nor Parent shall be obligated to take or agree or commit to take any Regulatory Action that (A) is not conditioned on the Closing, (B) relates to any of the Retained Businesses or (C) relates to any of Purchaser’s businesses or assets (other than the Transferred Companies), except for, in the case of clause (C), any Regulatory Action that imposes restrictions or other behavioral remedies, such as hold separate of any businesses, divisions, products or product lines, assets or operations (but not including any requirement to cease any line of business), in each case that are not materially adverse to Purchaser. No actions taken pursuant to this Section 5.3(c) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. In furtherance and not in limitation of the covenants contained in this Section 5.3, if any Action (including any Action seeking a temporary restraining order or preliminary injunction) is instituted or threatened to be instituted by any Governmental Entity under any Competition Law challenging, hindering, impeding, interfering with or delaying the consummation of the Sale or the other Transactions, Purchaser (and its Affiliates) shall contest and resist any such Action and seek to have vacated, lifted, reversed or overturned any such Action (whether temporary, preliminary or permanent) that is in effect and that prohibits, prevents, restricts or delays consummation of the Sale and the other Transactions. (d) ▇▇▇▇▇▇▇▇▇ 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 whose approval is sought in connection with the Sale and the other Transactions. Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to any Governmental Entity 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 to Parent’s legal and professional advisors. (e) Without limiting its obligations to perform its covenants set forth in Section 5.3(a), Section 5.3(b) or Section 5.3(f), neither Parent nor any of its Affiliates shall have any Liability whatsoever to Purchaser arising out of or relating to the failure to obtain any approvals that may be required in connection with the Sale and the other Transactions or because of the termination of any Contract as a result thereof. Purchaser acknowledges that no representation, warranty or covenant of Parent contained herein shall be breached or deemed breached solely as a result of (i) the failure to obtain any approval, (ii) any such termination of a Contract, or (iii) any Action commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such approval or any such termination. (f) The parties agree that, from the entry into this Agreement through the earlier of the Closing or the termination of this Agreement, neither party shall (and each party shall ~~use reasonable best efforts~~ cause its respective Affiliates not to) take or agree to take any action ~~after~~ that would be reasonably likely to prevent or materially delay the ~~date~~ Closing. In furtherance of the foregoing (i) neither Purchaser nor any of its Affiliates shall acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or Person or other business organization or division thereof, or dissolve, merge or consolidate with any other Person, if such transaction would reasonably be expected to prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement or the Ancillary Agreements, and (ii) neither party shall (and each party shall cause its respective Affiliates not to) take any action, or refrain from taking any action, that would reasonably be expected to ~~materially~~ prevent, delay or impede 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~~. (b) Prior to~~ ; provided that the ~~Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised~~ parties hereby agree that any sale of all or any portion 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or Retained Businesses by Parent ~~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 and in-house counsel to employees (other than in-house counsel), officers or directors~~ a breach of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, 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, foregoing clause (ii) ~~as necessary to comply with contractual confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed~~and, as ~~promptly as practicable~~it applies to Parent, ~~but in any event no later than five (5~~this Section 5.3(f) ~~Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent~~ shall ~~file or cause~~ not apply to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurRetained Businesses. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Stock Purchase Agreement (Capri Holdings LTD)

Required Actions. (a) ~~Purchaser~~ Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use reasonable best efforts to ~~take, or cause to be taken,~~ take all actions, and do, or cause to be done, 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 in an the most expeditious manner possible the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ 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 (which actions shall include furnishing all information required under any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by ~~Purchaser~~ Purchaser, New CommerceOne or Parent or any of their respective ~~Subsidiaries~~ Affiliates in connection with the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this ~~Agreement,~~ Agreement and (iii) the execution and delivery of any additional instruments necessary to consummate the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. ~~Additionally~~Neither Purchaser, ~~each of~~ New CommerceOne nor Parent ~~and Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions~~shall, and doeach shall cause its Affiliates not to, ~~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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the ~~Closing~~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 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 IX. For avoidance of doubt, any action taken by New CommerceOne or Parent or their respective Affiliates pursuant to and consistent with the terms of the 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~~ Purchaser, New CommerceOne and Parent shall each keep the other ~~reasonably~~ 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. In that regard, prior~~ Entity relating to the ~~Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each~~ completion of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 6.2, to the extent not prohibited by applicable Law~~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 shall~~ Agreement, the Sale, the Mergers and the other transactions contemplated by this Agreement, and (ii) promptly inform the other party to this Agreement, ~~and~~ 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 Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and ~~except as provided in Section 6.20,~~ 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 or other such Person~~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 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. Neither Purchaser, ~~on one hand, and Parent, on the other hand,~~ New CommerceOne nor Parent 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 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. ~~Purchaser~~ Notwithstanding the foregoing, Purchaser, New CommerceOne and Parent may, as each deems ~~in good faith to be~~ 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 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 ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Purchaser, New CommerceOne or Parent, 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~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~confidentiality~~ arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) ~~Purchaser~~ 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 ~~five (5) Business Days~~ thirty days after the date of this Agreement, ~~notifications~~ 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, and Purchaser and Parent shall file or cause to be filed,~~ Act as ~~soon~~ promptly as ~~reasonably~~ practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) ~~Purchaser~~ Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use ~~its~~ their respective reasonable best efforts (including agreeing to amendments to this Agreement or any Ancillary Agreement) to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Antitrust~~ Sale, the Mergers and ~~Foreign Investment Filings~~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~~ Purchaser, New CommerceOne and Parent shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate ~~and/or~~ and participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity ~~to prevent~~ that would prevent, delay or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement ~~and/or~~ 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 Merger 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) ~~Notwithstanding~~ 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 ~~provision of this Agreement, Purchaser shall take all actions reasonably necessary~~ third party so as to ~~avoid or eliminate each and every impediment under any Competition Laws~~ cause the conditions in Article IX to be satisfied so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiariespracticable. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) 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 any third party or any Governmental Entity in order to obtain any consent, finding of suitability, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Separation Agreement (Green Dot Corp)

Required Actions. (a) Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. (b) Purchaser and ~~Parent~~ Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, however, to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject - 46 - matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section ‎5.5(a); (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section ‎5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business. (c) Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section ‎‎5.5. In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section ‎5.5, each of Purchaser and Seller shall, and shall cause their respective Affiliates to use reasonable best efforts to take, or cause to be taken, any and 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 an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (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 any Competition Laws or any other applicable Laws relating to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries 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 steps and to fully carry out the purposes of this Agreement. Additionally, each of Parent and Purchaser shall use reasonable best efforts to 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 use reasonable best efforts 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 or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably 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. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 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 or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and except as provided in Section 6.20, 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 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~~ any and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser, on one hand, and Parent, 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 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. Purchaser and Parent may, as each deems in good faith to be 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 Parent or by Parent 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 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 Parent, 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 confidentiality arrangements and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and Parent shall file or cause to be filed, as promptly as practicable, but in any event no later than five (5) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Parent shall file or cause to be filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after the date of this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on Section 6.3(c) of the Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 reasonably~~ undertakings necessary to avoid or eliminate each and every impediment ~~under~~ asserted by any ~~Competition Laws~~ Governmental Entity in connection with obtaining the Required Regulatory Approvals, in each case, so as to enable the Closing to occur as promptly as ~~practicable (and in any event no later than the Outside Date)~~practicable, including (iA) agreeing toto conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition or Seller Burdensome Condition, and proposing alternative conditions upon which the Required Regulatory Approvals would be provided, (D) proposing, negotiating, committing to and effecting, by consent decree, hold separate ~~Order,~~ order or otherwise, the sale, ~~divestiture~~ divestiture, licensing or disposition of (1) with respect to Purchaser, any assets or business of Purchaser or its Affiliates or of the Company, and (2) with respect to Seller, any Unregulated Non-Retail Business, in each case, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned, any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed - 47 - between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s obligations under this Section ‎5.5. (d) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Purchaser nor any of its Affiliates shall be required to, and neither Seller nor the Company nor any of their respective Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to, or take any action, in each case, that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of Purchaser and its Affiliates (including the Company), taken as a whole, after giving effect to the Sale; provided, that Purchaser and its Affiliates (including the Company) shall be deemed to be the same size as the Company for purposes of this Section ‎5.5(d) (any such action or requirement, a “Purchaser Burdensome Condition”); and provided further, any regulatory mitigation action taken by Purchaser in connection with the transactions contemplated by the Plants EIPA or any mitigation ordered relating directly to the transactions contemplated by the Plants EIPA shall not be taken into account in the determination of whether there has been a Purchaser Burdensome Condition. For the avoidance of doubt, none of the exclusions set forth in the definition of “Company Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section ‎5.5(d). (e) Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Seller nor any of its Affiliates shall be required to, and neither Purchaser nor any of its Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to, or take any action, in each case, that, (i) would require Seller or any of its Affiliates (other than the Company) to commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any ~~businesses~~assets or business, ~~product lines~~ other than any assets or ~~assets~~ business of the ~~Transferred Entities~~Unregulated Non-Retail Business, ~~Purchaser, and their respective Subsidiaries, and~~ (ii) ~~otherwise taking~~ individually or ~~committing~~ in the aggregate, would reasonably be expected to ~~take actions~~ have a material adverse effect on the business, assets, results of operations or financial condition of Seller’s remaining electric businesses, other than the Unregulated Non-Retail Business, taken as a whole, after giving effect to the Sale; provided, that ~~after~~ for the ~~Closing~~ purposes of this clause (ii) such remaining electric businesses shall be deemed to be the same size as the Company; (iii) individually or in the aggregate, would ~~limit Purchaser’s~~reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of the ~~Transferred Entities’ or their respective Subsidiaries’ freedom~~ Unregulated Non-Retail Business, taken as a whole; provided, that for the purposes of ~~action with respect to~~this clause (iii) the Unregulated Non-Retail Business shall be deemed to be the same size as the Company, or ~~its~~ (iv) individually or ~~their ability to retain~~in the aggregate, ~~any businesses, product lines~~ would have a material adverse effect on the manner in which the remaining transmission or generation assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, Seller or any of ~~their respective Subsidiaries. No actions required~~ its Affiliates are operated, including a change in control over such operations (any such action or requirement in (i), (ii), (iii) or (iv), a “Seller Burdensome Condition”); and provided, further, that none of the obligations of Seller or any of its Affiliates set forth in or contemplated by the Ancillary Agreements (in, for the avoidance of doubt, the forms attached to this Agreement), the matters set forth in Section 5.20 or the matters set forth in Section 5.20(a)(ii) of the Seller Disclosure Letter shall be taken ~~pursuant to this Section 6.3(e) shall be considered for purposes~~ into account in the determination of ~~determining~~ whether there has been a ~~Business Material Adverse Effect has occurred or may occur.~~ Seller Burdensome Condition. - 48 - (f) ~~Whether~~ Notwithstanding the foregoing or ~~not~~ anything else in this Agreement to the ~~Sale is consummated~~contrary, neither Seller nor Purchaser shall be ~~responsible for all filing fees~~ required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals, consent to ~~obtain~~ the taking of any ~~consent~~action or the imposition of any terms, ~~clearance~~conditions, ~~expiration~~ limitations or ~~termination~~ standards of ~~a waiting period, authorization, Order~~ service the effectiveness or ~~approval pursuant to this Section 6.3~~consummation of which is not conditional upon the occurrence of the Closing.

Appears in 1 contract

Sources: Stock Purchase Agreement

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Parent~~ conditions of this Agreement, each of DigitalGlobe and GeoEye shall, and shall cause its Subsidiaries to use all reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger and, subject to the conditions set forth in Article VII hereof, to consummate the transactions contemplated by this Agreement, including the Merger, as promptly as practicable and (ii) to obtain (and to cooperate with the other party to obtain) as promptly as practicable any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party which is required to be obtained by GeoEye or DigitalGlobe or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated by this Agreement, and to comply with the terms and conditions of any such consent, authorization, order or approval. (b) Subject to the terms and conditions of this Agreement, each of DigitalGlobe and GeoEye shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable ~~under any applicable Laws~~ to consummate and make ~~effective in an expeditious manner~~ effective, as soon as practicable after the ~~Sale and the other transactions contemplated by~~ date of this Agreement, the transactions contemplated hereby, including using all reasonable efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby and using all reasonable efforts to defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or seeking material damages. (c) In furtherance and not in limitation of the foregoing, (i) ~~the preparation and~~ each party hereto agrees to make an appropriate filing of ~~all forms, registrations~~ a Notification and ~~notices required~~ Report Form pursuant to ~~be filed~~ the HSR Act with respect to ~~consummate~~ the ~~Sale and the other~~ transactions contemplated hereby at the time directed by ~~this Agreement~~DigitalGlobe, ~~(ii) taking all actions necessary~~ and to ~~obtain (~~supply as promptly as practicable any additional information 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 any Competition Laws or any other applicable Laws relating documentary material that may be requested pursuant to the filings and/or notifications set forth on Section 6.3(c) of the Disclosure Schedule) required to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the Sale HSR Act 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 Parent and Purchaser shall use its reasonable best efforts to take, or cause to be taken, all ~~actions~~other actions consistent with this Section 6.03 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable and (ii) each of GeoEye and DigitalGlobe shall each use its reasonable best efforts to (A) take all action reasonably necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated hereby and (B) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated hereby, take all action reasonable to enable the transactions contemplated hereby to be consummated as promptly as practicable on the terms contemplated by this Agreement and dootherwise minimize the effect of such Law on the transactions contemplated hereby. (d) At the time directed by DigitalGlobe, DigitalGlobe and GeoEye shall cooperate and join together in filing with the FCC applications for its consent to the transfer of control of the GeoEye FCC Authorizations to DigitalGlobe or its designated subsidiary or affiliate (“FCC Applications”). DigitalGlobe and GeoEye shall use their reasonable best efforts to diligently take, or cause to be ~~done~~taken, all ~~things necessary~~other actions consistent with this Section 6.03 to obtain promptly the requested written consent and approval of the FCC Applications by the FCC (“FCC Consent”). (e) At the time directed by DigitalGlobe, ~~proper~~ DigitalGlobe and GeoEye shall cooperate and join together in filing with NOAA or ~~advisable under any applicable Laws~~ the Department of Commerce, as applicable, an amendment to ~~fulfill~~ all ~~conditions precedent to~~ DigitalGlobe DoC Authorizations describing the transaction undertaken in this Agreement (together, the “DoC Application”). DigitalGlobe and GeoEye shall use their reasonable best efforts ~~not~~ to ~~take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of~~diligently take, 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~~ cause to be ~~obtained at~~ taken, all other actions consistent with this Section 6.03 to obtain promptly the requested written consent and approval of the DoC Application by NOAA or ~~prior to~~ the ~~Closing~~Department of Commerce (“DoC Consent”). (bf) ~~Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Parent shall each keep the other reasonably apprised~~ Each of the ~~status of matters relating~~ parties hereto shall use its reasonable best efforts to ~~the completion of the Sale and the~~ (i) cooperate in all respects with each other ~~transactions contemplated by this Agreement and work cooperatively~~ in connection with ~~obtaining all required consents, clearances, expirations~~ any filing with or ~~terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior~~ submission to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Parent and Purchaser shall promptly consult with the other party to provide any reasonably 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 transactions contemplated hereby and in connection with any investigation or other inquiry by or before, or communications with, a Governmental Entity (including the Department of Defense and the Office of the Director of National Intelligence) relating to the transactions contemplated hereby, including any governmental inquiry, investigation or proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any communication received by such party from, or given by such party to, the ~~Sale~~ Federal Trade Commission, the Antitrust Division of the Department of Justice, the Federal Communications Commission, the Department of Commerce or any other Governmental Entity (including the Department of Defense and the ~~other~~ Office of the Director of National Intelligence) and of any communication received or given by a private party in connection with any governmental inquiry, investigation or proceeding, in each case regarding any of the transactions contemplated ~~by this Agreement~~hereby. Subject to applicable Laws relating to the ~~Confidentiality Agreement~~ exchange of information, DigitalGlobe shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder; provided that each of the parties hereto shall have the right to review in advance, and ~~Section 6.2,~~ to the extent ~~not prohibited by~~ practicable each party will consult the other on and will take into account the reasonable inputs, comments and recommendations of the other party on, all the information relating to the other parties and their respective Subsidiaries, as the case may be, that appears in any filing made with, written materials submitted to, or oral presentations made to, any third party or any Governmental Entity in connection with any governmental inquiry, investigation or proceeding with respect to the transactions contemplated hereby. Subject to applicable ~~Law~~Laws relating to the exchange of information, each party shall have the right to ~~this Agreement~~ attend (to the extent permitted by the relevant Governmental Authority), and each party shall promptly and fully inform the other party about material conferences and meetings with regulators concerning the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Agreement, DigitalGlobe shall have the principal responsibility for devising and ~~if in writing~~implementing the strategy for obtaining any necessary antitrust, ~~furnish the~~ competition, communications or satellite-related clearances and other ~~party with copies~~ approvals of ~~(or, in the case of oral communications, advise the other party of) any material communication from any~~ Governmental ~~Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement~~Authorities, and ~~except as provided~~ shall take the lead in ~~Section 6.20, permit the other party to review~~ all meetings 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 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, on one hand, and Parent, on the other hand, shall not participate in any meeting communications with any Governmental Entity in connection therewith. Notwithstanding the cooperation of the parties required by this Section 6.03(f), in the event the parties do not agree with ~~this Agreement or the Sale, or with~~ respect to any ~~other Person~~ matter in connection with ~~any Action by a private party relating~~ the required clearances and approvals from Governmental Authorities, DigitalGlobe’s decision will control, provided that such decision does not interfere with GeoEye’s ability to ~~any Competition Laws in connection~~ control its operations prior to Closing, and otherwise is consistent with ~~this Agreement or~~ GeoEye’s obligations under the ~~Sale~~Law, ~~or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and,~~ including but not limited to the ~~extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend~~ Communications Act. DigitalGlobe and ~~participate thereat. Purchaser and Parent~~ GeoEye may, as each deems ~~in good faith to be~~ advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party~~ under this ~~Agreement~~ Section 6.03(f) as “~~outside counsel only~~Antitrust Counsel Only Material.” Such ~~designated materials and any materials provided by Purchaser to Parent or by Parent to Purchaser pursuant to this Section 6.3,~~ Antitrust Counsel Only Material and the information contained ~~therein,~~ therein shall be given only to the outside ~~legal~~ antitrust counsel of the recipient and ~~shall~~ will not be disclosed by such outside counsel ~~and in-house counsel~~ to ~~employees (other than in-house counsel)~~employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ GeoEye or ~~Parent~~DigitalGlobe, as the case may be) or its legal counsel~~; it being understood that~~ . Notwithstanding anything to the contrary in this Section 6.03(f), materials provided ~~pursuant~~ to ~~this Agreement~~ the other party or its outside counsel may be redacted ~~(i)~~ to remove references concerning the ~~valuation~~ valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of GeoEye, DigitalGlobe and their respective Subsidiaries. (g) Notwithstanding Sections 6.03(a), 6.03(b), 6.03(c), 6.03(d), 6.03(e) and 6.03(f) or any other provision of this Agreement to the contrary, in no event shall DigitalGlobe or its Subsidiaries or Affiliates be required to agree to (i) divest, hold separate or otherwise dispose of any material portion of its or GeoEye's respective businesses, assets or Contracts or allow a third party to utilize a material amount of the ~~Business,~~ capacity on its or GeoEye's satellites or (ii) take any other action that, individually or in the aggregate, would reasonably be expected to have a material adverse impact on the business, assets, Contracts or properties of DigitalGlobe and GeoEye, taken as ~~necessary~~ a whole. As long as the following actions of GeoEye are conditioned on Closing, DigitalGlobe may, if it so chooses, cause GeoEye to ~~comply with contractual confidentiality arrangements and~~ (~~iii~~i) ~~as necessary~~ divest, license, hold separate or otherwise dispose of, or allow a third party to ~~address reasonable privilege concerns~~utilize, any portion of its respective businesses, assets or Contracts or (ii) take any other action that would have an impact on the business, assets, Contracts or properties of GeoEye or its Subsidiaries. (ch) ~~Purchaser~~ Both DigitalGlobe and ~~Parent shall file or cause to be filed~~GeoEye shall, as promptly as practicable, ~~but in any event no later than five (5) Business Days after~~ and at least 60 days prior to the ~~date of this Agreement~~Effective Time, ~~notifications under the HSR Act, and Purchaser and Parent shall file or~~ cause to be ~~filed, as soon as reasonably practicable, but in any event no later than eight (8) Business Days after~~ filed with the ~~date~~ United States Department of ~~this Agreement, those other filings and/or notifications set forth (or, where applicable, drafts thereof) on~~ State’s Directorate of Defense Trade Controls the notices required under Section ~~6.3(c~~122.4(b) of the ~~Purchaser Disclosure Schedule (collectively, the “Antitrust and Foreign Investment Filings”). (d) Purchaser shall use its best efforts to resolve such objections, if any~~International Traffic in Arms Regulations, as may be asserted by any Governmental Entity with respect to the Antitrust and Foreign Investment Filings. In connection therewith, if any Action is instituted challenging the Sale or the other transactions contemplated by this Agreement as violative of any applicable Competition 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 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 Actionamended. (e) Notwithstanding any other provision of this Agreement, Purchaser shall take all actions reasonably necessary to avoid or eliminate each and every impediment under any Competition Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Transferred Entities’ or their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities, Purchaser, and their respective Subsidiaries. In that regard Purchaser shall sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Purchaser’s Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Transferred Entities, Purchaser, or any of their respective Subsidiaries. No actions required to be taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Digitalglobe Inc)

Common use of Required Actions Clause in Contracts